28 Pa. Super. 619 | Pa. Super. Ct. | 1905
Opinion by
It is well settled in Pennsylvania that when a promissory note “clearly shows upon its face ’’'that it has been altered in some material part, such as its date or the time or place of payment, it is incumbent on the party producing it and claiming under it to remove the suspicion thus raised as to the genuineness of the instrument by accounting for the alteration. In such a case the note should not be admitted in evidence, except in connection with evidence tending to explain the alteration. Heffner v. Wenrich, 32 Pa. 423; Hill v. Cooley, 46 Pa. 259; Hartley v. Corboy, 150 Pa. 23; Sunday v. Dietrich, 16 Pa. Superior Ct. 640, are cases in which this precise question arose and was decided in the way we have stated. But in Clark v. Eckstein, 22 Pa. 507, which was an action against the indorser of a promissory note purporting to be dated in 1851, it appeared upon the face of the note at the last figure of the date that there ivas a blot of ink and an erasure; that is, the paper showed that it had been scraped by some instrument. The defendant contended that the date of the note had the appearance of having been changed by this erasure from 1850 to 1851. He, therefore, objected to its admission in evidence without explanation. The objection was overruled, and the court charged that the preliminary question
The excerpt from the charge contained in the fourth», assignment of error does not fully express the idea which the charge asa whole conveyed to the jury. Taking it in connection Avith what precedes and Avhat immediately follows, and bearing in mind that there Avas no request for specific instructions as to presumptions, we are of opinion that it contains no error of Avhich the defendant can justly complain. For these
Sec. 124 of the negotiable instruments law provides as follows : “ Where 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 or assented to the alteration, and subsequent indorsers. But when an instrument has been materially altei’ed, and is in the hands of a holder in due course not a party to the alteration, he may enforce payment thereof according to its original tenor:” Act of May 16, 1901, P. L. 194. It is not claimed that the second clause of the section applies to the case, as it is presented by the pleadings and evidence, nor is the plaintiff attempting to recover otherwise than upon the note in its present condition. Hence, evidence that the proceeds of the original note, of which this was the last of several renewals, were applied to the payment of the premium upon a policy of life insurance in which the defendant had an interest, was irrelevant to the issue. It would have been inadmissible if it had been offered in the presentation of the plaintiff’s case in chief. It was equally so when offered in rebuttal. The sole defense was that the note had been altered after it was indorsed, and no evidence, relevant or .irrelevant, had been given in support of that defense which brought in question the consideration of the original note, or the purpose for which it was given, or the application that was made of its proceeds. In short, there is nothing in the pleadings or evidence that made this evidence admissible for any purpose. In answer to the suggestion that it was admissible to counteract the possible influence of a statement made by the defendant’s counsel, in opening his case to the jury, to the effect that his client was a mere accommodation indorser, it seems sufficient to say that there is no reason whatever to suppose that this result might not have been accomplished by an admonition to the jury that it was wholly immaterial whether he had an interest in the note other than that of a mere accommodation indorser or not. Passing the •technical objection that the statements of counsel in opening
The issue, under the pleadings, was whether the note was altered in a material part after it was indorsed by the defendant. But the court instructed the jury that, under the evidence, the question was “whether there was any alteration in the particulars claimed by the defendant before the negotiation of the note and after it was indorsed by the defendant.” This was put upon the ground that the testimony of the plaintiff’s witness that it was not altered after it came into the plaintiff’s hands was uncontradicted. The fact testified to by the witness was a very important one. Possibly it would not, of itself, overthrow the defense and establish the plaintiff’s case, but it was a step in that direction. Therefore it cannot be said that the instruction, even if erroneous, did not injure the defendant. Nor is that claimed by anyone. Was it erroneous ? It is to be observed that the testimony did not relate to a question of fact concerning which the plaintiff would be expected to be informed, or to have the ability to produce testimony either one way or the other. Hence the nonproduction by him of counter testimony cannot be made the basis of an inference of fact or a presumption of law unfavorable to him. This alone is sufficient to distinguish the case from the concededly exceptional cases of Holland v. Kindregan, 155 Pa. 156, and Lonzer v. Lehigh Valley Railroad Co., 196 Pa. 610, and to prevent the application of the rule therein laid down. Furthermore, it is to be borne in mind that the witness is the officer of the plaintiff company with whom the discount of the note was negotiated by the maker; therefore, it could not be asserted, certainly not by the court, that he went upon the witness stand wholly indifferent to the result of the trial. Suppose he had been the holder of the note and the plaintiff in the
Judgment reversed and a venire facias de novo aAvarded.