83 N.W. 12 | N.D. | 1900
The defendant the American Exchange State Bank of Buffalo, pursuant to the provisions of article 8, chapter 26, Pol. Code, became a depository of county funds for the plaintiff county. For the proper security of said deposits, said defendant executed its bond to said county, with all the other defendants as sureties thereon. The bank failed to pay over the funds deposited as b}? said bond it was required to do, and this action is on the bond, to recover the balance unaccounted for. The bank made default, as did the defendants Bayley and Moug. The^other defendants answered, setting up, in effect, that the bond sued upon was not their contract, by reason of certain erasures. Plaintiff at the trial offered the bond in evidence. It was objected to by reason of the erasures. The objection was sustained. Plaintiff then proved that when the bond was delivered it was in the same condition as when offered in evidence, and again offered the bond. The same objections were repeated, and the bond was again rejected. The basis of plaintiff’s action being thus excluded, the court, on motion of the defendants, directed a verdict in their favor.
The only assignment of error that we shall discuss is that relating to the ruling in excluding the bond. The original bond was sent
Under these facts, what is the rule of law as to the admission of the bond in evidence? In the case of Bank v. Laughlin, 4 N. D. 391, 61 N. W. Rep. 473, this court, without citing the authorities, declared that “the legal presumption, prima facie, is that alterations appearing upon written instruments were made before delivery.” We regard that as the better rule at the present day. Every phase of decision on the point can be found in the books. A review would be profitless. We content ourselves with quoting from Mitchell, J., in Wilson v. Hayes, 40 Minn. 531, 42 N. W. Rep. 467, 4 L. R. A. 196: “The question of presumption and burden of proof, where interlineations or erasures appear on the face of an instrument, is one upon which there is a wilderness of authorities and much conflict of opinion. Any attempt to cite or consider the
If the erasure in this instance .was in the body of the instrument,