¶1(dissenting).
¶2I concur in the holding of the majority that the trial court erred in excluding the testimony of R. R. Farmer. For 'this error, I think the cause should be retried. I do not concur in the judgment of the majority in so far as it renders judgment in this court in favor of appellant. While the order of the majority is that the judgment below be reformed and affirmed, the effect thereof, as between the parties to this appeal, is to reverse and render. The holding of the majority, as I understand it, is that, although an interested witness acknowledges that he changed a deed’ executed by another party after the deed had been delivered and recorded, still, if he gives a reasonable explanation thereof by testifying that the change was made by him by mutual consent of the parties affected, no issue of fact to be determined by the jury, or by the trial judge when no jury is demanded, is presented by the testimony. As disclosed in the opinion of the majority, this deed was re-recorded a few days after the death of J. W. Farmer. The change materially affected his property rights. It was interlined at the bottom of the deed following the warranty clause. The court heard the testimony of the attorney who states that he made the interlineation and also inspected the instrument, and from such testimony and inspection it was his opinion that the interlineation was not authorized by the deceased, J. W. Farmer.
¶3■ It is my view of the law that where an interested witness acknowledges that he changed a written instrument executed by another than himself, that fact alone raises an issue of fact as to whether the change was authorized, even though such interested witness does testify that the interested parties agreed to the change and his testimony in that regard is uncontradicted. The exact question; I think, has been decided by our own courts. In the case of McDonald v. Nalle, 41 Tex. Civ. App. 499, 91 S. W. 632, 633, this question arose and was disposed, of in this language: “Although appellee testified that the alteration in the note was made by his bookkeeper and without his authority, and no witness testified to the contrary; yet, as the alteration was in his favor and made while the note was in his possession, and as he was an interested party, the court should have submitted to the jury the- issue as to whether or not the alteration was made by him. Bowser v. Cole, 74 Tex. 224, 11 S. W. 1131; Heierman v. Robinson [26 Tex. Civ. App. 491], 63 S. W. 667, 2 Tex. Ct. Rep. 1067; Railway v. Johnson, 23 Tex. Civ. App. 160, 55 S. W. 772, 791; Sonnentheil v. Brewing Co., 172 U. S. 401, 19 S. Ct. 233, 43 L. Ed. 492.”
¶4In the case of Schumann v. Brownwood Mutual Life Ins. Association (Tex. Com. App.) 286 S. W. 200, 202, the question above suggested was the controlling question. That case went to the Supreme Court from this court 276 S. W. 956. As in the case at bar, the judgment of this court reversed and rendered the judgment of the trial court. Writ of error was granted, and our judgment was reversed and the cause remanded for another trial. The opinion was written by the Commission, but the holding thereof was expressly approved by the Supreme Court. There, as here, an admitted change was made in a written paper after its execution, but a fair and reasonable explanation of it was testified to by .the person making the alteration. In disposing of the question, this rule of law is announced: “It is well settled that a jury is not compelled to credit the statement of one who admits that he did anything to a paper which had theretofore been executed by someone else. * ⅜ ⅜ It was for the jury to say whether his explanation was false or otherwise.” To the same general effect are: McWhirter v. Allen, 1 Tex. Civ. App. 649, 20 S. W. 1007; San Antonio Brewing Ass’n v. J. M. Abbott Oil Co. (Tex. Civ. App.) 129 S. W. 373; Wright v. Austin (Tex. Civ. App.) 1 S.W.(2d) 703.
¶5There is another reason why I think this judgment should not be rendered in- this court. The trial judge inspected the instrument and it was his opinion that the inter-lineation was a forgery. When we render a judgment for appellant, the effect thereof is to say that the interlineation was so certainly made by the witness that reasonable minds could not differ with regard thereto. In other words, as I understand it, the judgment of our court necessarily is based on the conclusion that there can be no difference of opinion as to whether the handwriting in the alteration was the same as that in the -body of the deed. This conclusion is arrived at without the aid of any extrinsic evidence except that of the witness who made the alteration, and is based upon our inspection of handwriting. I am unable to say that the interlineation was made by one other than the witness, and do not so say. On the other hand, I could not so certainly determine from an inspection of a paper that the handwritings are identical as that I would disturb the judgment of the trial court and hold, as a matter ,of law, that there was no room for difference of opinion in regard thereto.
¶6For the above reasons I respectfully enter my dissent.