Estate of Nagle

134 Pa. 31 | Pa. | 1890

Opinion,

Mr. Justice Clark:

When the check which is the subject of controversy in this case was presented to the auditor for adjudication, it was objected to, upon the ground that there was an alteration in the amount; that the alteration was apparent and manifest upon the face of the check, and that the burden was upon the holder, before the check could be received in evidence, by competent proofs to explain it, and to show, either that the alteration was made before its execution, or afterwards, with the consent of the drawer. The auditor, however, was of opinion that the check did not exhibit on its face any material alteration; admitting that where the alleged alterations appeared the face of the paper had been scratched or scraped, he was not able to discover that the amount of the check had been written over any other amount previously written;. that is to say, although the check was manifestly blurred and disfigured at the place of the alleged erasure, yet there was not, upon the face of the paper, any apparent alteration of the amount. “ The witnesses testify,” says the auditor, “ that they can see that the paper had been scratched, and that the ink blurred and appeared to have been written over an erasure; what had been erased they do not pretend to say; it may have been a blot of ink, or the wrong word may have been written and immediately scratched out, and thus the ink blurred. It certainly does not appear, either to the naked eye, or from an examination under the microscope, that it was written over any particular amount previously written.” The check was therefore received in evidence, and was, without any explanation, allowed in the distribution. The learned judge of the court below, in passing upon the report of the auditor, says: “ Now, an alteration is defined to be an act done upon the instrument by which its meaning or language is changed: 1 Greenl. Ev., § 566. Where does it appear on the face of this check that it ever conveyed a different meaning, or spoke a different language, from what it does to-day ? It is said that the letters ‘ teenhun ’ are written over an erasure. If that is so, the check does not disclose it, and at this stage of the inquiry we can look no further. All that the check shows is that the face of the paper, where those letters appear, had been scraped before the letters were written. It is admitted that not the slightest trace of any previous matter, either written or printed, can be discovered at this point. To erase is ‘ to rub or scrape out; as letters or characters, written, engraved, or printed: ’ Webster. The scratching or scraping of the surface of blank paper is not an erasure, in any accepted sense of that term. We think, therefore, that the learned auditor did right in receiving the check in evidence.”

If the rule be as stated by the learned judge, the success in completely obliterating all traces of the words of the genuine instrument, although there may be other evidences of alteration apparent, shifts the burden of proof from the party offering the paper in evidence to the party alleging the alteration. This would, in effect, we think, be to offer a premium upon the forger’s skill. If there be apparent proof on the face of the paper that an alteration has been made in the place where the amount or the date of a check or note should be written, it must be supposed, prima facie, that it was the amount or the date which is altered, and that the alteration is to the prejudice of the party executing it. If this were not so, it would, in all cases, fall upon the drawer of the check or the maker of the note, in the first instance, to show what Avas the matter erased, before the holder is required to explain what is otherwise manifest, auz., that the instrument has been altered in. a material part.

At the argument of the cause, in this court, the check was produced and submitted to our inspection; photographic copies Avere also provided, and we have thus been afforded the same opportunities for examination of the paper as the auditor or the court below. The mere fact that some of the words of a Avriting appear to have been written upon paper where it has previously been rubbed or scraped, and that the ink has run so as to create a blurred appearance, that, and no more, might not, perhaps, import any alteration, although this occurred in a material part; but the fact that an erasure has been made, where the surface of the paper has been scraped, may become apparent from various facts exhibited on the face of the paper itself; the writing upon the erased surface may be with a different pen, in different ink, or in a different hand, or the words may be crowded and cramped to fit the space originally occupied. The mere roughness of the surface is not likely to affect the general style and spacing of the words, but when certain words are erased, and others are inserted in lieu thereof, in a space either too small or too large to receive them, the alteration is usually inserted in such a cramped or crowded manner, or in such extended form, as to plainly indicate the alteration. Simple faults in writing, blots, or blemishes, are, in most cases, thus readily distinguishable from an alteration in the body of the instrument, whether made fraudulently or in good faith. That this check was scraped or rubbed, as if to erase something, is patent and plain; indeed, that is not disputed. The sizing and a portion of the surface of the paper have been removed; at this particular place the paper is so thin that, holding it to the light, one may almost see through it; whereas, the other portions of the paper are quite perfect; the marks of an instrument with a sharp edge are plainly visible. The allegation is that the check, originally, was for $422, (although written four hundred dollars,) and was raised to $1,422. It is plain that the words, “the sum of four.....are unaltered. They are undoubtedly just as they were originally written. It is very remarkable that where the writer had plenty of room, and to spare, in the line devoted to the amount, and he started out apparently to occupy it, that he should stop at the place of the erasure, in the middle of a word, and from that point cramp and crowd the words or letters, as if the space was limited. It will be observed, also, that the crowding of the letters, and contracting of the spaces, is confined to the place where the paper was scraped; that the space covered by the alleged erasure is just sufficient to contain the word “ hundred ” with the usual spacing, and the letters “dred” appear to be written upon the space between the “^¶” and the word preceding, where no-erasure was made; that after the word “four” there is apparent a remnant of the matter erased, and that the letters “teen” appear to have had no connection with “four” until after the erasure, the hair-line finish of the “r” having been formed as if that letter was the last one of the word. It is also a singular coincidence that the figure “ 1,” in the figures on the corner, denoting the amount of the check, is very close to the ($) dollar mark, and is of a much darker shade or color than either of the other figures, which are alleged to have been made at the same time, with the same ink, and the same pen. The general appearance is that of an altered paper. The alteration, we think, is manifest and apparent at the first glance, and a critical and careful examination confirms this impression. The alteration may have been made at the time, with the lcnowledge and approval of the parties; but, as the writing, including the alteration, is in the hand of the payee, it is the duty of the holder to explain it. It is unimportant that both parties to the transaction are dead; an explanation is thereby rendered more difficult, perhaps, but the security and safe transmission of negotiable paper demand that the rule so well established in our decisions shall be maintained. The maker of negotiable paper is always presumed, in the absence of evidence, to have issued it clear of all blemishes, erasures, and alterations, and the burden of showing that it was defective when issued is upon the holder : Heffner v. Wenrich, 32 Pa. 423. As a general rule, the law presumes in favor of innocence, but this presumption does not extend to the alteration of negotiable instruments. “He who takes a blemished bill or note, takes it with all its imperfections on its head. He becomes sponsor for them, and, though he act honestly, he acts negligently. But the law presumes against negligence as a degree of culpability; and it presumes that he had not only satisfied himself of the innocence of the transaction, but that he had provided himself with the proofs of it, to meet a scrutiny he had reason to expect.” Simpson v. Stackhouse, 9 Pa. 186. To the same effect are Paine v. Edsell, 19 Pa. 178; Clark v. Eckstein, 22 Pa. 507; Miller v. Reed, 27 Pa. 244; and many other cases.

The distinction as to the province of the court and of the jury, excepting as it may involve the question of the burden of proof, is rendered unimportant, by the fact that the auditor in the first instance, and the learned judge afterwards, performed the functions of both court and jury. The check wa$ nob qnly received in evidence, but it was allowed in the distribution, without any explanation whatever. We are of opinion that the decree in this case cannot be sustained.

The decree of the Orphans’ Court is therefore reversed, and the record remitted for further proceedings; the appellee to pay the costs of this appeal.