196 Ky. 614 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
J. C. Darraugli sued Franklin Clarke Denny, executor of the estate of liis deceased wife, Nancy A. Darraugh, io recover on a note for $2,500.00, subject to a credit of $525.00. The defendant pleaded non est factum, want of consideration and material alteration of the note. The first trial resulted in a verdict for plaintiff, which was set aside and a new trial granted. The second trial resulted in a hung jury, and a third trial in a verdict and judgment for defendant. Plaintiff appeals.
One of the grounds on which' a new trial was asked was the relationship of certain jurors to the defendant and the defendant’s wife. It appears from the affidavits that the juror, T. T. Thompson, is a second cousin of the defendant; that the juror, W. P. Colston, is a third cousin of the defendant, and that the jurors, L. F. Sayers and B. P. Adams, are defendant’s third cousins hy marriage. It further appears that the defendant and each of the jurors knew of the relationship, and that the jurors were asked as to the relationship and answered that they were not related. The affidavits also show that plaintiff did
In view of another trial, it becomes necessary to pass on other questions. Plaintiff offered to prove that the blurred condition of the note was due to the fact that it was written with an indelible pencil, and the note became wet while he was riding horseback in the rain, and further that the condition of the note was not as blurred when he delivered it to his attorney for the purpose of bringing suit, but the evidence was excluded. Plaintiff insists that this evidence was admissible because it did not relate to any transaction which plaintiff had with his deceased wife, but related to an occurrence which took place long after the transaction was had. The rule that a party may not testify for himself concerning a transaction with one then dead includes indirect evidence, as well as direct evidence. Clearly, plaintiff was not competent to testify as to the condition of the note when he received it. For the same reason he was not competent to testify that the present condition of the note was due to circumstances occurring after its execution, as this evidence would have a tendency to establish the condition of the note at the time it was delivered. •
On the question of non est factum, the burden of proof was on plaintiff. Thompson v. Eversole, 162 Ky. 836, 173 S. W. 165. (On the questions of no consideration and material alteration, the burden was on defendant. Bronston’s Admr. v. Lake, 135 Ky. 173, 121 S. W. 1021. However, when plaintiff proved his wife’s signature to the note, he made out a prima facie case that the whole body of the note was her act. Simpson v. Davis, 119 Mass. 229, 20 Am. Rep. 324. It then devolved upon defendant to show from the appearance of the instrument itself, or otherwise that it had been materially altered. Davis v. Jenney, 1 Metcalfe (Mass.) 221. When this was done, the burden shifted to plaintiff to explain how and when the alteration was made. Elvert v. McClelland, 8 Bush 577; Frazer’s Admr. v. Frazer, 13 Bush 397; Wild v. Ormsby, 6 Cush. 314.
There was introduced in evidence a contract of settlement purporting to be signed by plaintiff and his wife. There being no plea of settlement or of payment, the contract was not relevant to any issue made by the pleadings and should have been excluded.
Judgment reversed and cause remanded for new trial consistent with this opinion.