127 Ark. 234 | Ark. | 1917
(after stating the facts). (1) The law of this case is stated in the case of Jones v. Bank of Horatio, 102 Ark. 302, where the court said: “The original checks have not been brought up with the record. From the testimony it appears that there is a conflict as to whether or not the alleged alterations were apparent on the face of the checks. It has been settled by this court that the alteration of a check duly signed and delivered, without the knowledge or consent of the drawer, ‘although done in such manner as to leave no mark or identification of an alteration observable by a man of ordinary prudence, avoids the check as to the drawer, even in the hands of one to whom it is negotiated before maturity for a valuable consideration and without notice of the forgery.’ Fordyce v. Kosminski, 49 Ark. 40, but whether or not a check has been altered is a question of fact to be determined by a jury from the evidence adduced upon the trial of the case.” Section 124 of the Negotiable Instrument Act, Acts 1913, Act 81, page 260, reads as follows: “When a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided except as against a party who has himself made, authorized and assented to the alteration. But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment according to its original tenor. ’ ’
Objection is made by counsel for appellants to the refusal of the court to give certain instructions asked by them. The instructions refused were covered by instructions given by the court. The instructions of the court were in accordance with the principles of law laid down above and we do not deem it necessary to set them out.
(2) The principal contention of appellants is that the law enforces upon the party claiming under a note the burden of explaining an alleged alteration and assign as error the action of the court in refusing to so instruct the jury. This is the rule where the alteration appears or! the face of the instrument; but in the ease at bar according to the proof adduced by appellee, there is not upon the face of the note anything indicating an alteration or casting any serious suspicion upon its validity. In the case of an alleged alteration which is not apparent on the face of, the instrument by the use of ordinary care in inspecting it, the burden is on the party alleging it, to prove it. United States v. Linn, 1 How. (U. S.) 104; Case note 39 L. R. A. (Ñ. S.) at page 115; 1 Ruling Case Law, par. 73, page 1041.
It follows that the judgment should be affirmed.
