216 P. 691 | Wyo. | 1923
This is an action brought by First National Bank of Mor-rill, as plaintiff, against John B. Ford, as defendant, on a promissory note dated June 9, 1917, due in six months, payable to the Gifford Motor Co. for $450.00. The petition is in the usual form. The defendant filed an answer denying that he ever executed a note to the Gifford Motor Company for $450.00, but that the note sued on is a forgery; that on June 9, 1917, he executed to the Gifford Motor Company his promissory note for $150.00; that if the signature on the note in suit is his genuine signature, the note was fraudulently altered and forged to the sum of $450.00,
Upon the trial of the case the defendant admitted that he signed the note in question, but claimed that it was given for only $150.00. The note introduced shows no alteration apparent on its face. The court instructed the jury in instruction No. 1 that they were the sole judges of the facts; in instruction No. 2, that the defendant having admitted his signature to the note, the only question of fact for them to determine was whether the note was originally given for $150.00 or $450.00; if the former they should find for the defendant, if the latter, for the plaintiff. The third instruction, and the last of substance, told the jury as follows:
‘1 The court instructs the jury that the burden of proving that said note was altered so as to raise the amount thereof from $150.00 to $450.00 is upon the defendant, and these facts must be established by clear and convincing proof in order to constitute a defense to plaintiff’s action.”
1. Defendant complains that the burden of proof of showing the alteration contended for was, by the third instruction of the court, imposed on him. It is stated in 1 R. C. L. 1041:
■ “There seems to be no dissent from the rule that where no alteration is apparent on the face of the instrument, the burden of proving that there has in fact been an alteration is on the party alleging it. ” . .
"Among the almost innumerable decisions, and the conflict of authorities upon the subject of presumptions arising from alterations apparent upon the face of the instrument, there seems to be but one principle upon which the authorities are in harmony. This is, that where an alteration in an instrument is alleged to have been made, and such alteration is not apparent upon the face of the instrument, the burden of showing that the latter has been altered is upon the party who alleges it.”
The rule is stated more cautiously, though not analyzed, in 2 C. J. 1267. In addition to the cases cited in these authorities, sustaining the rule mentioned, see also: Wagler v. Tobin, 104 Kan. 211, 178 Pac. 751; Central Trust Co. v. Kendall, 202 Ill. App. 294; Wicker v. Jones, 159 N. C. 102; 74 S. E. 801, 40 L. R. A. (N. S.) 69, Ann. Cas. 1914 B. 1083; Arnold v. Wood, 127 Ark. 234; 191 S. W. 960; Craig v. National City Bank, 26 Ga. App. 128, 105 S. E. 632; Daniels, Neg. Inst. (6th Ed.) Sec. 1421. In the case of Williamsburgh Sav. Bank v. The Town of Salon, 136 N. Y. 465, 32 N. E. 1054, the court said:
"Where the alteration is visible on the face of the, instrument the paper discredits itself and the holder should explain. But where the change simply makes the bond perfect in accordance with its own express terms and apparent purpose there is nothing for the holder to explain. The burden falls pn the adversary to prove an alteration such as will effect the instrument and he must show the facts on which he relies. That is both the reasonable and the settled rule.”
If by the burden of proof above mentioned is not simply meant the burden to go forward with the evidence, and we think it is not, then clearly the statements referred to, that the authorities in a case like that at bar are harmonious, are
In the ordinary case the burden of proof is on the plaintiff, and, as indicated, it always is on him whenever the defendant simply traverses ¿ffirmative allegations of the former; or simply seeks to establish new and distinct facts, not by way of confession and avoidance, but as negativing
We should naturally expect to receive some light on the immediate question before ns from those cases which have had under consideration the point as to whether an alteration of an instrument is to be pleaded or not. Under-our statute the answer must contain “a statement of any new matter constituting a defense,” (Sec. 5659, subd. 2 W. C. S. 1920), and if the claim of alteration is an affirmative defense, then, no doubt, the defense must be specially pleaded in this state, which was in fact done in the case at bar; if it is not an affirmative defense, then a general denial would
“Under this authority (Schwarz v. Oppald, supra) we see no escape from the conclusion that evidence of alteration which goes to the identity of the instrument, controverts a fact which a plaintiff is bound to prove in the first instance, that the instrument is the act of the defendant."
There is contained, as we have stated, considerable logic in the position thus taken. But a different viewpoint may be adopted with reason. Looking at the question from a different angle, the claim of alteration is a claim both confessing and avoiding. Under a plea of that kind the true burden of proof is always on the party setting it up since he then becomes the actor. 2 Chamberlain, supra, §§ 946, 947, 951, 952, 953; Cowen v. Houck Mfg. Co., 249 Fed. 285; 161 C. C. A. 293; Cotton v. Willingham (Tex. Civ. App.) 232 S. W. 572. In such case, as applicable here, the claimant confesses that he executed the identical document in question, not exactly in the form then appearing, but still that document as it was originally; he admits its full validity at the time of its execution, but pleads in avoidance that at some time thereafter, the instrument became void by reason of an alteration made therein. Hence while such a plea is not, perhaps, a true plea in confession and avoidance in all particulars, it is similar to it and hence, too, in accordance with the holding of a number of courts, it is an
The question of pleading, as well as that of the burden of proof of an alteration of an instrument, is new in this state, and we must adopt the rule which we deem to be most productive of justice on the whole. We need not enter into the vexed questions arising when an alteration appears on the face of the instrument, though it is probable that when such alteration appears to be suspicious, a different rule than herein laid down would be adopted. But we confine our decision to a case where an instrument shows no apparent alteration on its face. The question of pleading and of burden of proof go hand in hand; if the claim of alteration is affirmative, it must be specially pleaded and proved by the party relying thereon, although, of course, the necessity of pleading it may be dispensed with, if already pleaded by’ the other party. Digen v. Schultz (Mont.) 210 Pac. 1057. Chamberlain, supra., Sec. 946.
There seems to be no invariable test to determine what is and what is not an affirmative defense. Thayer, supra, 376, says:
“But as time passes and the conceptions on which legal obligation is determined come from age to age to rest on a new analysis, it would seem that the test of an affirmative case must also change and be made to depend more commonly than it does now, and more distinctly, on,the newly accepted ideas and analysis. ’ ’
The definition given in Bond v. Corbett, 2 Minn. 248, 255, seems to fit the case at bar when it defines an affirmative defense
“as something which does not deny wholly the transaction alleged, but seeks to avoid it by what took place subse*126 quently, or by some legal difficulty which exists to recovery. ’ ’
In Hellmuth v. Benoist, 144 Mo. App. 695, 598, 129 S. W. 257-258, it is said:
“Under a general denial defendant may prove any state of facts which tend to show that plaintiff never had a cause of action. * * * If the plaintiff ever had a cause of action, and for any reason his right of recovery has been extinguished, then the facts which go to defeat his cause of action must be pleaded.”
Butj the general test that has been applied, and which was applied in the cases holding that the burden of proof on the whole case is on plaintiff to show that there was no alteration, is that all facts which directly tend to disprove any one or more of the averments of the opposite party may be offered under the general denial. Pomeroy, Code Remedies, Sec. 673. This test has not, however, been always consistently applied, as for example in the defense of payment, where plaintiff alleges non-payment, or in the defense of justification in an action for defamation, where plaintiff alleges the falsity thereof. Phillips on Code Pleading, §§ 363, 385. Logic in law must to some extent be tempered by considerations of public policy and justice. The premises from which conclusions are drawn may not always and invariably be applicable -to a like extent. It was admirably said in Spilene v. Salmon Falls Mf’g. Co., 79 N. H. 326; 108 Atl. 808:
“The argument against the free application of the idea that under certain circumstances the defendant should be called upon to produce evidence rests in its final analysis upon the theory that, since the plaintiff makes a charge, he must prove it-. But this general rule is not now, and never has been,- carried to the extreme limit of its logic. Many defenses are treated as matters in confession and avoidance;*127 and, when they are pleaded, the burden is pnt npon the defendant in both senses. He has the duty to go forward and produce evidence and also the risk of non-persuasion. If he is sued upon a promissory note, he must seasonably deny his signature, or his nonaction is taken as his admission of the signature. The logic of the general principle that the plaintiff should have the duty to go forward and the risk of non-persuasion has always been modified by the application of what was at the time deemed to be the common sense of the situation. It may be that many of the cases have gone too far in this respect. It is undoubtedly true that the authorities are not harmonious; yet the essential soundness of the principle which they have sought to apply cannot be doubted. ’ ’
It is said in Wigmore on Ev. (2nd Ed.) Sec. 2488 that as to who has the burden of proof “depends ultimately on broad considerations of policy.” This, no doubt, is true, and applies equally to the proposition, as included in' the former, as to what is and what is not an affirmative defense.
In the ease at bar the defendant claims that the note in question was altered by raising the amount thereof from $150.00 to $450.00. If that is true, it is fraud and forgery, and in this case would directly involve the owner. If it was altered, it was done by him, or by some one with his knowledge and connivance. The charge is grave, and though this is not a criminal case, a finding to that effect would stamp the owner as a forger, and as an outlaw in his community, unworthy of the confidence of his fellowmen. Is it right that this fact should not affect the situation and should not be considered by courts? It is said in some cases where there was an alteration on the face of the instrument that there is no presumption either one way or the other. See Wigmore, supra, Sec. 2525; 2 C. J. 1276; note 39 L. R. A. N. S. 112. But this is not such a case. Here the presumption of innocence, that men act in good faith and not unlawfully, should operate in favor of plaintiff. Chamberlain supra, Sec. 1219. And while it is said
2. The defendant contends that even though the burden of proof of showing the alteration was on defendant, the court erred in requiring clear and convincing proof. It is true that a number of cases say that the burden must be met by a preponderance of the evidence. 2 C. J. 1288. None of the cases that we have found directly involve the point now under consideration, except Lewis v. Garrettson, 56 Iowa. 278, 9 N. W. 214, which, following an earlier civil case, not involving the question of fraud, held as contended for by defendant. On the other hand on page 1288 of 2 C. J. the rule used by the court in the case at bar is stated, without, however, distinguishing it from the rule stated on the previous page. In Kahn v. Traders Ins. Co., 4 Wyo. 419, 476, 34 Pac. 1059-1077; 62, Am. St. Rep. 47, this court said:
“A man who alleges fraud must clearly-and distinctly prove the fraud he alleges, and the proof must be clear and sufficient to satisfy the mind and conscience of the existence of fraud.”
To the same effect is Wallace v. Skinner, 15 Wyo. 233, 255, 88 Pac. 221.
In the case at bar the presumption of innocence exists in favor of the owner of the note. To create a preponderance of the evidence, the latter must be sufficient to overcome the opposing presumption as well as the opposing evidence. And as said by Jones on Ev., Sec. 195:
“Presumptions, like probabilities, are of different degrees of strength. To overcome a strong presumption requires more evidence than to overcome a weak one. To fasten upon a man a very heinous or repulsive act requires*131 stronger proof than to fasten upon him an indifferent act. * * * Hence it can never be improper to call the attention of the jury to the character of the issue, and to remind them that more evidence should be required to establish grave charges than to establish trifling or indifferent ones. ’ ’
To preponderate does not necessarily mean that the one side shall be overbalanced just a little; the overbalancing may be considerable. Hence an instruction requiring clear and convincing proof is simply stating that the preponderance must be definite, clear and convincing. The great weight of authority justifies this qualification in cases of fraud. We recently held that to establish that an absolute conveyance, unaccompanied by any written stipulation for reconveyance, was intended to operate as a mortgage, the evidence of that intention must be clear, unequivocal and convincing. McFadden v. French, (Wyo.) 213 Pac. 760. The reason for the rule lies in the fact that to claim as an absolute conveyance what in fact is a mortgage is a fraud upon the grantor in the instrument. We can see no good reason why the rule should not be applied in a case in which the payee of a note is accused of forgery. 2 C. J. 1288; 2 Jones Ev. Sec. 195; Wigmore Ev. Sec. 1298; National City Bank v. Electric Co., 96 Wash. 74, 164 Pac. 933.
3. Counsel further appeal to the rule that whenever the instrument'bears any suspicious evidence of alteration, then the burden is on the party offering the instrument, and no burden of proof rests upon defendant. Starting out with this assumption — and we need not decide whether it is correct or hot — ingeniously argue that whether any such suspicious evidence of alteration exists is a question for the jury, and that hence the court should have instructed the jury that if in their opinion the note on its face contained anything tending to show an alteration, then the burden of proof was on plaintiff and not on defendant. The lower court, upon inspecting the note, probably found no suspicious evidence of alteration on its face. The original note
4. The note in question was given in part payment of a Grant car. During the transaction leading up to the purchase of the car, the defendant attempted to have the Gif-ford Motor Company accept as part of the purchase price, to the extent of $300, an old Metz car owned by him, and he claims that in fact it was so accepted, thus accounting for the difference between $450 and $150 of the note in suit, claimed to have been altered. The Gifford Motor Co., on the other hand, denied that it accepted it as such part pay
A letter was written to the witness Gifford in response to the letter just mentioned, dated July, 1917, the main portion of whichds as follows:
“You will find enclosed notes for which I hope you can collect as they come due as that was the understanding between us.
Yours truly,
J. B. Ford.
You are down there where he lives and have a better chance for to collect. ’ ’
The notes referred to where the notes given by George Day in payment of the Metz car. The defendant and his wife testified that the letter was written by the latter without any authority from her husband. But the court admitted the letter in evidence and this is assigned as error. It appears that the letter was received in due course of mail, and that it is in answer to a prior letter addressed to the defendant and received by him, and it is held that in such case a presumption arises that the later letter is the letter of the person whose name is signed thereto. 22 C. J. 94. In any event, we think that from this testimony, together with other testimony in the record, tending to show the authority of Mrs. Ford to write the letter, the jury had the right to draw the inference that the letter was in fact the letter of the defendant, and it was, therefore, properly admitted.
As indicated before, when George Day discovered that the Metz car was worthless, he returned it to the Gifford Motor Company, and the company in turn wrote the defendant of that fact, asking him what he wanted done with the car. The witness Gifford was permitted to testify to the contents of the letter, though no notice to produce it had been served. We might here mention the fact that it appears to be' held by a number of authorities that where
The witness Gifford was permitted on re-examination to testify to statements made to Day while selling him the Metz ear to the effect that the car was that of the defendant who had placed the price of three hundred dollars thereon. These statements are excepted to as self-serving.. The witness had been asked at length on cross-examination as to statements made by him to Day. There is no reason, therefore, why plaintiff should have been barred from inquiry as to other statements made at the same time. The answers permitted to be given simply clarified some evidence given on cross-examination.
We find no prejudicial error in the record. The judgment of the lower court should accordingly be affirmed and it is so ordered.
Affirmed.
PotteR, Ch. J., and Kimball, J., concur.