Dodge v. Haskell

| Me. | May 6, 1879

Peters, J.

Where a plaintiff declares upon a note and offers it in evidence against the maker, there is a burden upon him to satisfy the jury that an apparent alteration of the note was made before delivery. This arises from the general burden of proof, which the plaintiff has to sustain, to show that the instrument declared on is the genuine aud valid promise of the defendants. Therefore, if there is evidence, each way, upon a question of alteration, the preponderance must be in favor of the plaintiff. The jury are to be satisfied that a note is genuine and not frauda* ulently altered.

But the paper itself, unaided by other evidence, may satisfy the jury, or it may not. All depends upon circumstances. Alterations are rarely alike. The alteration may be immaterial, or comparatively so, or natural, or beneficial to the maker, or made by the same pen and ink as the body of the instrument, or in the hand-writing of the maker (where one maker), or in that of the witness to the instrument; and in such cases it would not be suspicions. On the other hand, the alteration may present indications of fraud and forgery. Whether it does or not is a question of fact and not of law. It cannot bo a question of law to decide whether a note is in two inks or one, or two hand-writings or one, or why so written. It is said that alteration prima facie indicates fraud. It is sure that it does not in all cases. On the other hand, it is said that fraud is not to be presumed. But it would be extreme to say that an instrument might not be so altered as to show upon its face the grossest attempt at forgery. Therefore, what alteration or degree or kind of alteration may exist without being suspicious enough to demand explanation, is for the jury to settle. There is no presumption of law, either way. There is much confusion in the cases upon this subject and a great variety of decisions. There can be no difficulty, practically, in the rule as we here state it. It will rarely happen that a case is to be tried without some evidence aliunde the note, and it cannot be a matter of much consequence which side proceeds first. Crabtree v. Clark, 20 Maine, 337. Boothby v. Stanley, 34 Maine, 515. 2 Washb. Real Prop. 555, and cases.

The note was declared upon as dated November 23, 1869. The date in the count was amended so as to read August 23,1869. The amendment was allowable. It does, in one sense, permit a new cause of action to be described, but not in the sense that the rule is to be understood. The declaration, amended, describes the note correctly ; unamended, it described it incorrectly. Still, it identified it, there being but one note. Stevenson v. Mudgett, 10 N. H. 338. As Jacobs’ L. Die. has it,citing ancient authorties: “ If a thing which a plaintiff ought to have entered himself, being a matter of substance, is wholly omitted, this shall not be amended, but otherwise it is, if omitted only in part and misentered.” The reason of it is that it appears, from what is described, what was intended to be described. Warren v. Ocean Ins. Co., 16 Maine, 439. The nature of the cause of action was not changed. Rand v. Webber, 64 Maine, 191, has been erroneously supposed to allow an amendment to the extent of allowing the nature of the action to be changed. That case merely allowed a correction of the writ, already improvidently and improperly amended, that such a result might be avoided.

The surety, the defendant defending, desired to place before the jury a quantity of papers to exhibit a practice of the principal party to the note, the alleged forger, in the matter of forging signatures of notes. So far as they were excluded, we think the exclusion was right. They were inadmissible for the same reason that it is not a defense to one note that the person who presents it has forged another note, or that his general character is bad. 'They were not introduced to show his ability to write, but that he was in the practice of forging, making preparations therefor. So far as the papers were admitted, presenting similitudes of the note, or some part of the note in suit, the admission was proper.

We are of the opinion that the court correctly allowed the plaintiff’ to show that he took the note in question in payment of a similar note between the same parties. It may be a matter of but slight importance; still, as bearing upon motive and the probabilities, we think the jury had a right to consider the fact.

This brings us to a point where the exceptions must be sustained. And that is the implied ruling that, if the first note was genuine, the jury need not consider any question of alteration as far as the second note is concerned. So apparent is it that this instruction is erroneous, it would seem that it might have been merely an unfinished expression. But, upon careful examination, we do not see how the result of a new trial on that account can be avoided.

Exceptions sustained.

Appleton, C. J., Walton, Barrows and Daneorth, J J ., concurred. Libbey, J., having been formerly of counsel, did not sit.