
    Tapscott v. Gibson.
    
      Action on a Lost Bond.
    
    1. Action upon a lost bond; defect in affidavit accompanying .complaint no ground of objection to complaint. — An action may be brought on a bond or note alleged to be lost or destroyed, without the plaintiff making the statutory affidavit of the “loss and destruction, the contents thereof, and that the same has not been paid or otherwise destroyed,” (Code, § 31), the purpose of such affidavit being to shift the burden of proof; but if an affidavit intended to be made, as prescribed by said section of the Code, is attached to the complaint, defects in such affidavit constitute no ground of objection or demurrer to the complaint.
    2. Pleading and practice; amendment of complaint. — Where the original complaint in an action contains a single count seeking to recover upon a promissory note which is averred to contain a waiver of exemptions and a promise to pay reasonable attorney’s fees, it is permissible to amend the complaint by adding a seeond count which seeks to recover upon a promissory note without the conditions as alleged in the original complaint; such amendment not being the substitution of an entirely new cause of action.
    3. Same; same. — A court has power, after the trial has been entered upon, to allow an amendment of the complaint so as to make the allegations of the terms of the contract declared on correspond with the evidence; and where the original complaint contains a single count seeking to recover upon a promissory note, and there is evidence introduced tending to show that the writing sued on was under seal and therefore a bond and not a note, it is proper for the court to allow the plaintiff to amend his complaint by the addition of another count seeking to recover upon a bond; such bond as described in the amended complaint relating to the same cause of action declared on in the first count.
    4. Trial and its incidents; charge of court as to evidence illegally admitted. — Where incompetent and illegal testimony has been admitted in evidence, which might have been excluded at any stage of the trial on proper motion, the admission of such evidence is rendered harmless to the adverse party by a charge given at his instance, instructing the jury that it was not evidence of the fact to which it was directed; such charge being equivalent to excluding the incompetent testimony.
    5. Promissory note; estoppel. — Where the maker of a note induces a person to purchase said note, stating at the time that it was a binding obligation, he is estopped from thereafter, as against such purchaser, setting up the fact that said note was without consideration, and its execution was procured by fraud and misrepresentation.
    Appeal from tlie Circuit Court of Morgan.
    Tried, before the Hon. H. C. Speaks.
    This was an 'action brought by the appellee, J. P. Gibson, against the appellant, J. 0. Tapscott. The complaint, as originally filed, contained only one count in which the plaintiff claimed of the defendant the sum of $150, with interest thereon from January 1, 1894, alleged to be due “by virtue of a certain note executed by the defendant to one W. B. Teague, in the year 1893, and due on the first day of January, 1894, for the sum of one hundred and fifty dollars. Plaintiff avers that the said W. B. Teague transferred the said note to one E. H. Sharpley and that the said E. H. 'Sharp-ley transferred the said note to this plaintiff, and that plaintiff is now the owner of said note, and that it is due and unpaid. Plaintiff avers that in and by the provisions of said note the defendant waived his right to claim any property exempt from levy and sale under legal process, and that in and by the provisions of said note the defendant agreed to pay a reasonable attorney’s fee provided the said note was not paid at maturity, and the plaintiff says that twenty-five dollars is a reasonable attorney’s fee. Plaintiff says that the said note has not been paid at maturity. Plaintiff says that the -said note has been stolen from him in the State of Texas, and that it has not been paid to him.” This complaint was verified by the certificate of the clerk of the circuit court reciting that J. P. Gibson, the plaintiff in said cause, being sworn to speak the truth, deposed and said that the -allegations of the foregoing complaint are true. This certificate of verification was signed by the clerk of the court in his official capacity. To this complaint, the defendant demurred upon the following grounds: “1st. There is no affidavit of the plaintiff accompanying the -complaint of the loss or destruction of the note sued upon, and'that the same has not been paid or otherwise discharged. 2. The writing purporting to be an affidavit annexed to the complaint is not a compliance with the statute, and is insufficient to supply said note. 3. The writing purporting to' be an affidavit and attached to the complaint is not signed by the alleged affiant. 4. It is not- averred in the complaint that the note sued on was transferred to E. H.' Sharpley for maturity. 5. It is not averred in said complaint that said not was transferred to the plaintiff before maturity.” . This demurrer was overruled. Thereupon the defendant filed Ids sworn plea averring that the note described in the complaint and upon which the action was founded was not executed by him or by any one authorized to bind ■him. The defendant also interposed special pleas, in which he set up that he was only the surety of one F. F. Tapscott on the note sued on; that his signature to the note was acquired by the fraud of one Teague, who was the original payee of the note, in that said note was given in payment of the purchase by F .F. Tapscott of the right to sell a patent bed spring and brace in Lauderdalp. and Colbert counties; said Teague, the seller of said patent,- representing that he was the owner thereof, and that the right to sell to F. F. Tapscott was a valuable right; that relying upon this representation, F. F. Tapscott executed the. note to said W. 11. Teague and the defendant signed the same as surety. It. was then averred in said special plea that the patent right was not owned by said Teague, nor was the same valuable or saleable. The defendant also filed a special plea, in which he set up the fact that he was a surety on the said note, and that he had notified the plaintiff and his transferror, one E. H. Sharpley, that he was such surety, and requested them to bring suit against F. F. Tapscott inasmuch as said F. F. Tapscott was about to move from the State; that notwithstanding this notice or request that neither the said Sharpley, who was at that time the holder of said note, nor the present plaintiff, brought -action against F. F. Tapscott. After the filing of these pleas, the plaintiff 'offered to amend the complaint by adding thereto a second count in words and figures :as follows: “2d count. ‘The plaintiff -claims of the defendant the -sum of one hundred and fifty ($150) dollars due'by note executed to W. R. Teague by the defendant and one F. F. Tapscott, on the 18th day of February, 1893, and due and payable twelve months after date, which note was by said W. R. Teague for value, and before maturity transferred to E. H. Sharpley, and by him for value transferred and assigned to the plaintiff. The plaintiff avers that in and by -said note the defendant waived his rig'ht'to claim any property exempt from levy and sale under legal process, so far as the collection of- said amount i-s- -concerned.” The defendant objected to the amendment' of the complaint and moved to strike the second count from the file, upon the ground that said count introduced an entirely new cause -of action and was- an entire -departure from the cause of action as contained in the original complaint. This motion was overruled. To the complaint as amended, the defendants filed the same pleas as were introduced to the original complaint, including the sworn -p-le-a of non est factiom. The plaintiff then filed the following replications: “1. Each of -said pleas is untrue. 2. Prior to the purchase of said note -by E. I-I. Bharp-ley defendant informed said Sharpley that said note was all right, upon which assurance said Sharpley relied, and parted with value for said note. 3. Prior to plaintiff’s acquisition of said note defendant assured him that the same was a valid and binding -obligation and would-be paid, upon which assurance plaintiff parted with value to acquire. 4. Prior to plaintiffs acquisition of said note defendant came to him and begged him to purchase the same from said E. IT. -Sharpley, wh-i-ch plaintiff, at defendant’s request, did and parted with value therefor, being wholly ignorant at the time -of any infirmity connected with said note -or with any consideration therefor. 5. Defendant operated extensively under the patent right for said new spring, and made several sales himself of territory and rights thereunder, and derived great pecuniary benefits therefrom which he has not offered to pay or surrender to said Teague.” Upon issue joined: upon these pleadings, the cause was tried.
    J. P. Gibson, the plaintiff, as a witness in his own behalf, testified that he was the owner of a promissory note made by F, F. Tapscott to the defendant, J. P. Tapscott, for the sum of $150, which was due some time in Januray, 1893, and payable to W. It. Teague, and due January 1, 1894; 'but that- he was not sure as to the date of said note. The defendant objected to this evidence in reference to the note, and moved to exclude the same upon the ground that the note itself was the best evidence. Thereupon the plaintiff’s attorney stated that the note had been lost. The court overruled the objection and motion of the denfendant, and to this ruling the defendant duly excepted. Upon the plaintiff, as a witness, testifying that he lost the note or it was stolen from him in Texas, he was asked to describe the contents of said note. The defendant objected to this question on the ground that it was not an action on a lost note. The court overruled this objection, permitted the witness to describe the contents of the note, and to this ruling the defendant duly excepted. The witness testified that the note ivas for $150 and was due January, 1894, and contained a waiver of exemptions and provided for the payment of a reasonable attorney’s fee; that at the request of the defendant in this case he purchased the note from E. H. Sliarpley, to whom it had been transferred by W. B. Teague, the original payee; that the defendant told him before he purchased the note that E. H. Sliarpley was the owner of said note, and was pressing him for payment, and requested ■the plaintiff to purchase the note, and the defendant promised to pay the same at an early date, stating that the note was all right. On cross-examination the plaintiff, as a witness, described the indorsements on said note as being first from W. R. Teague'without recourse, to E. H. Sliarpley, and from E. II. Sharplev to the plaintiff without recourse, and further testified that the name W. B. Simmons was signed as a witness to said note. ’ Thereupon the defendant objected to all of the testimony of said witness describing the contents of 'said note and moved to exclude tbe same from the jury- upon the ground .that the execution of the said note had not been proven by the subscribing witness. The court overruled the objection, and the defendant duly excepted. The plaintiff further testified that the note so transferred to him by Sharpley was a common waive note and was not a bond and did not recite at the bottom thereof “Witness my hand and seal”; that said note was not payable at a bank or any particular place, and further that the witness did not know whether the name of J. 0. Tapscott or F. F. Tapscott appeared first at the bottom of the note.
    E. H. Sharpley, a witness for the plaintiff, testified that he purchased from- W. R. Tapscott a note which was executed 'by F. F. Tapscott to the defendant; that before purchasing said note he talked with the defendant over the telephone and asked if he had given a note to Teague for $150, and upon the defendant telling him that he had and that the note wras all right and would be paid, he bought said note from Teague; that for such note he paid Teague $55 in cash and a horse -worth $95; that the money so paid and the horse so traded were delivered to W. B. Simmons, as the agent of said Teague. This witness further testified that the note so purchased by him was for $150 and was a common waive note and given for a patent right. The defendant objected to all of the- testimony of the witness Sharpley and of the witness Gibson describing and giving the contents of the note, and moved to exclude the same from the jury upon the ground that the execution of said note had not been properly proven and because it was not shown that the name of F. F. Tapscott and J. 'C. Tapscott signed to said note were in their respective handwriting. The court overruled the objections and motions, and to this ruling the defendant duly excepted. On cross-examination the witness testified that the note was not under seal, hut he did not remember whether it provided for attorney’s fee or not. This witness further testified that while he held the note he asked the defendant for payment thereof tun or three times, but the defendant always replied that he was not able to pay it at that time, but be would pay it at some time later, stating that be owed it and that it was a just debt.
    W. B. Simmons, as a witness for tbe plaintiff, testified that be witnessed a note given by F. F. Tapscott and J. 0. Tapscott to W. B. Teague, and that be signed said note as an attesting witness. On cross-examination tbe witness Simmons testified that tbe note contained a waiver, but did not provide for tbe payment of attorney’s fees, and that it was under seal. Thereupon tbe plaintiff asked leave of tbe court to amend bis complaint by adding a third count thereto in words, and figures as follows: “For a third count of tbe complaint plaintiff files tbe following count: Plaintiff claims of tbe defendant the sum of one hundred and fifty dollars due by one bond in writing and under seal, made by tbe defendant and one F. F. Tapscott to one W. B. Teague on tbe 18th day of February, 1893, and due and payable 12 months after date, and plaintiff avers that in said bond and as a part thereof tbe defendant waived all bis right to claim any personal property as exempt from levy and sale under legal process. Plaintiff avers that said bond was transferred by said W. B. Teague to one E. H. Sbarpley, and by him was. transí erred for value to tbe plaintiff, and said bond is now the property of plaintiff.” Tbe defendant objected to tbe filing of said amendment or third count to tbe complaint upon tbe ground that it was an entire departure from tbe original cause of action, and introduced a new cause of action in tbe case. The court overruled this objection, permitted tbe plaintiff to file said amendment, and to this ruling of tbe court the defendant excepted. Tbe defendant then moved tbe court to strike from tbe file tbe third count of said complaint upon tbe same grounds, and duly excepted to tbe court’s overruling his motion. The defendant then moved tbe court to exclude from tbe jury all of tbe testimony of tbe witnesses J. P. Gibson and E. H. Sbarpley describing or giving tbe contents of tbe note transferred by Teague to Sbarpley, and from Sbarpley to Gibson, because said testimony was at variance with said amendment or third count. The court overruled this motion, and tbe defendant duly excepted.
    
      Tbe defendant introduced W. B. Simmons as a witness in bis bebalf, and be testified tbat tbe 'bonds given by F. F. Tapscott and J. C. Tapscott to W. R. Teague, which be attested as a witness, was given in consideration of tbe purchase of tbe right to sell a patent bed spring and brace in a given territory; tbat this right was sold to F. F. Tapscott; tbat this note was transferred by W. R. Teague to E. H. Sbarpley. Upon tbe cross-examination of said witness by tbe plaintiff be testified that Sbarpley sent $55 and a horse to Teague by tbe witness ; tbat this may have been done at tbe request of Teague, who was boarding at tbe witness’ bouse at tbe time. Tbe witness then stated “that be did not know what tbe $55 and tbe horse were for, but be supposed it "was for said note or bond. Tbe defendant objected to that part of tbe witness’ testimony which is quoted above, because it was incompetent and illegal and moved to exclude tbe same. The court overruled tbe objection and motion, and tbe defendant duly excepted.
    Tbe defendant J. O. Tapscott, as a witness in bis own bebalf, testified tbat on February 18, 1893, be signed a note or bond as surety for F. F. Tapscott to W. R. Teague for $150 due and payable 12 months after date; that said note or bond contained a waiver of exemptions, but did not provide for the payment of reasonable attorney’s fees that tbe signatures of tbe makers of said paper were under seal and that said bond was given for the purchase by F.' F. Tapscott of the right to sell in Colbert and Lauderdale counties a patent bed spring and brace which W. R. Teague claimed to own or be tbe agent for. Said bond was given upon the representation tbat said purchase of tbe patent right was made and said bond given upon tbe representation of said Teague of tbe value of tbe patent ; tbat as a matter of fact tbe patent was worthless, was not salable, and was of no benefit to Fi F. 'Tapscott. This witness then denied having requested tbe plaintiff to purchase thé bond from Sbarpley and also denied telling Sharpley over the telephone tbat be had executed the bond, and that it was all right, and further denied in bis testimony that he had promised to pay said note; but he testified that he had notified and requested both Sharpley and the plaintiff that he was only a surety on the said note and requested them to bring action thereon against F. F. Tapscott, who was the principal maker.
    Upon the introduction of all the evidence the court, at the request of the 'plaintiff, gave to the jury the following written charges: (1.) ■ “If you believe from the evidence that the defendant Tapscott induced the plaintiff to buy or purchase the note or bond described by the defendant in his testimony, then your verdict must be for the plaintiff, notwithstanding the note may have been without consideration, notwithstanding the note may have 'been procured by fraud and misrepresentations, and notwithstanding the fact that there may have been irregularities in the transfer of the note from Teague to •Sharpley.” (2.) “If you believe from the evidence that the defendant induced the plaintiff to buy or purchase the note or bond described in the evidence of defendant Tapscott, then you must find your verdict for the plaintiff, even though the evidence should show that the article sold by Teague to F. F. Tapscott ivas not in fact patented.” (3.) “If the jury believe that the defendant J. 0. Tapscott requested or induced the plaintiff to buy or purchase the note or bond described by the defendant in his testimony, your verdict must be for the plaintiff, provided you further find that plaintiff did buy the note or bond for value.” ( 4.) “Gentlemen of the jury, I charge you that if you find that the defendant Tapscott induced Sharpley to buy the note or bond described in the testimony of the defendant Tap-scott, and he, plaintiff, parted with value for the note or bond, then your verdict must be for the plaintiff.” (5.) “If the jury believe that the defendant procured or induced the plaintiff to buy the note or bond described by defendant Tapscott in his testimony, and you further find that the plaintiff parted with value for the said note or bond, then the defendant is stopped [estopped] from setting up any kind or character of defense to this action which may have existed at the time the plaintiff purchased the note, and your verdict must be for the plaintiff.” .
    The defendant separately excepted to the giving of each of these charges, and also duly excepted to the court’s refusal to give the following charge requested by him: (1.) “There is no evidence in this case that the bond executed by defendant and P. F. Tapscott was the same instrument transferred by Teague to Sharpley.”
    There were verdict and judgment for, the plaintiff. Thereafter the defendant moved the court for a new trial upon the following grounds: “1. The court erred in overruling the motion to strike from the file the second and third amended counts of the complaint. 2. The court erred in permitting the plaintiff in the progress of the trial of the cause to amend his complaint by adding a third count thereto. 3. The court erred in overruling the motion of the defendant to strike from the file the said amended or third count to the complaint filed during the progress of the trial. 4. The verdict of the jury was contrary to the evidence in the case.” This motion was overruled, and the defendant duly excepted. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.
    W. R. Francis and O. L. Price, for appellant.
    The court erred in permitting the complaint to he amended by the addition of the second and third counts. — Leath-erwood v. Stoggs, 96 Ala. 383; Mobile Ins. do. v. Randall, 74 Ala. 176; Harris v. Hillman, 26 Ala. 380.
    The charges requested by the plaintiff were erroneous and should have been refused. — Boyd v. Jones, 96 Ala. 305; Ramsey v. State, 91 Ala. 29; White v. Graft, 91 Ala. 144; Thompson v. Duncan, 76 Ala 334;■ Light Go. v. Elder, 115 Ala. 138.
    Arthur L. Brown, contra.
    
    The plaintiff has the right to sue and recover on the lost note or bond without first making affidavit setting up the loss and the fact that the note had not been paid; the purpose of the, affidavit being merely to shift the burden of 
      proof. — Br. Bunk v. Tillman, 12 Ala. 214; Bank of Mobile -o. Williams, IB Ala. 544; Bank of Mobile v. Moayhcr, 3B Ala. G22.
    Under tlie Code, tlie court liad the discretion to allow an amendment to the complaint by the addition of other counts at any time before the jury retired to make up their verdict, so long as it did not introduce an entirely new cause of action, or was not an entire departure from the original complaint. — Prater v. Miller, 25 Ala. 320; Bareli v. Taylor & (Jo., 32 Ala. 20; Primes’ Admrs. v. (Jramfonl, 29 Ala. 623; Long v. Patterson, 51 Ala. 414.
    The amendments adding the second and third counts to the complaint did not introduce a new cause of action, nor were they a departure from the original cause of action. — Read v. Scott, 30 Ala.- 640; Taylor, Executrix, v. Perry, 48 Ala. 240; Robinson v. Darden, 50 Ala. 71; Long v. Patterson, 51 Ala. 414. The various counts sought to describe the debt or contract declared upon, and the plaintiff had the right to amend any time during the progress of the trial so ns to meet the evidence as to the description of the instrument sued upon. — Steed v. McIntyre, 68 Ala. 407; Mohr v. Le-mle, 69 Ala. ISO; Roster v. Napier, 73 Ala. 595; Oden v. Bonner, 93 Ala. 393; Springfield E. ct- M, Go. v. DeJarnett, 111 Ala. 248.
   SHAIÍ PE, J.

Actions may be brought on lost bonds or notes such as are described' in this complaint without the affidavit of loss or destruction prescribed by section 31 of the Code. A plaintiff- may avail himself Of the affidavit as evidence in case it accompanies the complaint and is not denied by a verified plea, but being evidential merely no reference need be made to it in the pleading, -and defects in the affidavit are not ground of objection to the complaint.—Glassell v. Mason, 32 Ala. 719; Bell v. Moore, 9 Ala. 824.

The 2d and 3d -counts were properly allowed to be added as amendments to the -complaint. There was nothing to show that the plaintiff held or claimed to hold more than one node or bond -against defendant, and that, 'the evidence tended to show, had been stolen from him in Texas. As to the contents of that instrument the witnesses did not f-ully agree and the. added counts each purported to describe a writing corresponding to some phase of the testimony. Under such 'Conditions it was right to assume the amendments related to the same cause of action declared on in the first count. Plaintiff had the legal right to amend his complaint during the progress of the trial so as to prevent a variance between the complaint and any part of 'the evidence in matters merely descriptive of the original cause of action.—Code, $ 3331; , 54 Ala. 122; Dowling o. Blackman, TO Ala. 303; Long v. Patterson, 51 Ala. 414.

Exceptions reserved to the admission of testimony on the ground that it had relation to writings not shown to have been executed were not well taken. A witness testified that he attested the execution of a writing and his description of that writing corresponded in part though not entirely with that given by other witnesses of the instrument referred to in the challenged testimony. This partial correspondence together with the evidence of the consideration and other circumstances attending the whole transaction was sufficient to authorize the court and jury to infer the identity of the instrument proved by the subscribing witness with that spoken of by each witness.

A witness in testifying to the passing of money and a horse from the first transferee to the payee of the note or bond said “he supposed it was for said note or bond.” This was not evidence but its admission was rendered harmless to the defendant by a charge given at his instance -instructing the jury that, it was not evidence of the fact to which it was directed, which -charge Avas equivalent to excluding the incompetent testimony. Foxworth v. Brown, 120 Ala. 59.

The charges given at plaintiff’s request properly applied to the evidence a familiar principle in the IÚav of estoppel. If charges 3 and 4 Avere faulty in omitting to hypothesize the jury’s belief upon the'evidence, the fault was only in a tendency to mislead which the defendant might have liad corrected by an explanatory charge

The charge refused to defendant was not warranted by the evidence.

There was no error in refusing the motion for a new trial.

Judgment affirmed.  