Brunton v. Ditto, 51 Colo. 178

Brunton v. Ditto

51 Colo. 178 | Colo. | 1911

Mr. Justice White

delivered the opinion of the Court:

Plaintiff in error seeks to recover, from the estate of John E. Brothers, deceased, the sum of $950.00, together with interest thereon, less $7.50 paid January *17912,1907, as evidenced by an alleged promissory note of deceased bearing date January 2,1907. The claim was presented to, and rejected by, the administrator, defendant in error herein. Thereafter, a trial was had in the county court, resulting in judgment in favor of the estate, from which the claimant prosecuted an appeal to the district court, where the case was again tried, resulting in a like judgment. To reverse the judgment, there rendered, the claimant prosecutes this suit.

The defense claimed that the note had been fraudulently altered, after its delivery, so as to read $950.00 instead of $150.00 as originally written.

Neither the claim filed with the county court, nor the alleged note, is embodied in the record, though a ■copy of the alleged note appears therein.

Plaintiff in error claims that the evidence is wholly insufficient to warrant the verdict, and support the judgment.

A verdict upon conflicting evidence, under proper instructions, and which the trial court has refused to set aside, will not be reviewed in this court. Gilette v. Young, 45 Colo. 562. Upon the vital issues in the case, a substantial conflict appears in the evidence. Numerous witnesses testified to facts and circumstances tending to show, and from which the jury could properly conclude, that the note had been fraudulently changed as claimed. One witness testified to a conversation had with the plaintiff in error, long after the alleged execution of the note, and just before the death of the •maker thereof, in which plaintiff in error stated that John E. Brothers, the maker of the note, owed her '$150.00. Another witness testified to a state of facts showing, or tending to show, that plaintiff in error had in her possession, subsequent to the death of the maker ■of the note, a bottle of fluid which, when applied, would xemove ink from paper. Other witnesses testified, that *180the appearance of the note indicated that certain material parts forming the original amount thereof, had been removed by some such liquid. While still others, as experts, testified to the alteration of the note in the respects claimed, and, in their opinion, the changes had been made after the note was originally written. It is true, two witnesses testified to being present when the note was executed and delivered, and that no change had been made therein, but the apparent change was the result of a poor pen and frozen ink. The jury, as it had the right to do, under the circumstances of this case, evidently disbelieved such witnesses in those respects. Moreover, if we were inclined, which we are not, to pass upon the sufficiency of the evidence to support the verdict, we could not do so, as plaintiff in error has failed to embody in the record the very note upon which her claim is predicated. This essential evidence, and its importance, for the purpose of inspection, is readily apparent. The note was before the jury, and they inspected it. It is not before us, and the failure in that respect is through the negligence of plaintiff in error.

Certain instructions requested were refused, and error is assigned thereon. The only difference between the instructions refused and those given, is, that in the former the words “clear,” “strong,” “convincing,” “concise” and “indubitable” are used, as descriptive of the character of evidence essential to establish the fact, that the note in question had been fraudulently altered, whereas, in the instruction given no descriptive words in that respect are found. We think the instructions given made it clear to the jury that they could arrive at a verdict for defendant, only from a clear, satisfactory preponderance of the evidence upon the issues involved, and that such evidence must be sufficient to convince the mind of a reasonably prudent and cautious person. . This we think was sufficient, and the instruc*181tions requested and refused, were substantially covered by those given. It devolves upon plaintiff in error to show wherein the judgment is wrong, and having failed therein, it is affirmed. Judgment affirmed.

Chief Justice Campbell and Mr. Justice Bailey concur.