Gettysburg National Bank v. Gage, 4 Pa. Super. 505

4 Pa. Super. 505 | Pa. Super. Ct. | 1897

Opinion by

Rice, P. J.,

The contention in the present case is that the words “ with interest at 6 per cent” were interlined after the notes were signed. They have been exhibited to us and we have had the same opportunity to inspect them that the court below had. The only evidence apparent on the face of the notes to sustain the defendant’s' contention, or to excite suspicion even, is that the words do not occupy the whole line and that they begin a little to the right of the other lines. It was said in Bank v. Chisolm, 169 Pa. 564, that this was sufficient to put the discounting bank upon inquiry, and we do not purpose to depart from that decision. But against the weak presumption arising from the single circumstance to which we have referred, it is to be observed that, (1) a printed blank was used and that there was no place for inserting the written words except in the space between the dollar line and the printed line “ without defalcation for value received; ” (2) the words could be, and were, inserted there without break or crowding the other lines or diminishing the size of the letters; (3) they appear to be in the same handwriting and to have been written with the same ink as the body of the note. All of these things are observable upon an inspection of the papers.

In addition, a witness of experience in judging handwriting testified that in his opinion the handwriting of the words “ with interest at 6 per cent ” was of the same age as that of the body of the notes. The defendant being called for cross-examination would not swear positively that the-words were not on the notes when he signed them, but testified that he was “ pretty certain that they were not there.” His testimony might very easily be explained upon the theory that he did not notice them. This is a very different case from Bank v. Chisolm in which the decision was predicated on the “ entirely undisputed fact in this case that the defendant’s obligation in suit was altered, after it left him, and without his knowledge or consent.” Considerable is said in the paper-books as to the evidence in that case, but as was said by Mr. Justice Dean in Yoders v. Amwell Twp., 172 Pa. 447: “In determining whether a conclusion of law in any adjudicated case is a precedent in a subsequent one, the value of the first, usually, is measured by its similarity or dissimilarity to the second in its controlling facts. And even if the court, announcing the conclusion, misapprehends or mistakes the facts, the conclusion to be of any value as a precedent must be taken as applicable to the facts as assumed by the court; they, as concerns the judgment, are the facts, and whether existing or non-existing, either prompt or compel the conclusion of law that determines the judgment. For that reason it would be a waste of time to notice the controversy here between counsel as to what were the facts in ” (the case cited); “ for our purpose and as a precedent in all cases after it was decided, the facts, as stated in it by this court, must be taken as correct.”

Another fact of very great significance, which bears directly on one of the notes and inferentially on the other, and which plainly distinguishes the case from Bank v. Chisolm, is this: The two notes offered in evidence together with a third were executed at the same time and were parts of one transaction. They were made payable in one, two and three years respectively. In one of the two notes offered in evidence the upper part of the first letter of the defendant’s signature appears to have been written over the lower part of the letter “ p ” in the words “ per cent.” This can be seen with the naked eye and still more plainly under a glass. The irresistible inference from the appearance of the paper is that the words “ with interest at 6 per cent” were on the paper when it was signed. We do not mean to say that this shuts out proof to the contrary, but only that this is the appearance that the paper presented when it was offered. Obviously, it is no answer to say that the attention of the trial judge was not specifically called to the fact that the defendant’s signature appeared to have been written as described ; the note was submitted to the court for inspection, and we must take the record as we find it.

Where the defense to a suit on a negotiable promissory note is that it was altered in a material part after it was signed and delivered by the maker, and the alteration is not so far apparent on an inspection of the paper as to raise a suspicion of its purity, the burden of proof rests on the defendant. If, however, there is an apparent alteration the burden of proving that it was lawfully made or that the paper is in the same condition as when it was issued, rests on the party offering it; and the court will refuse to receive it in evidence until some explanation of the apparent alteration has been made. The quantity and character of proof required to carry the question to the jury must depend upon the circumstances of each particular case.

As we have shown, one of the notes needed no explanation of the words “ with interest at 6 per cent ” to entitle it to be admitted in evidence. Conceding that the other note did, it is certainly not a case where the presumption was strong that the words were interlined after signing, or where the burden cast on the plaintiff was a heavy one: Winters v. Mowrer, 1 Pa. Superior Ct. 47; Clark v. Eckstein, 22 Pa. 507. The ultimate decision of the question as to the alteration of the notes rested with the jury, and we are of opinion upon all the facts to which we have called attention that the plaintiff was entitled to have it submitted to them, under the proper instructions.

The judgment is reversed and a venire facias de novo is awarded.