123 Iowa 736 | Iowa | 1904
The execution of a note for $2,100 by plaintiffs to the defendant bank is conceded. It also appears without controversy that certain indorsements were made upon the back of the paper on which the note was originally written, and that these indorsements were at some time — the exact date being a matter of dispute — covered over by a green slip of paper, which was pasted upon the back of the note, completely obscuring all of the original indorsements save one, and that this piece of green paper also bore certain indorsements as having been paid upon the note. It is also conceded that on December 4, 1901, plaintiffs paid the defendants the sum of $1,206.84, the amount which defendants claimed was at that time due upon the note after allowing all proper credits. It is further admitted that when the note was delivered to the plaintiffs as fully paid and canceled, it had this green strip of paper pasted thereon, which completely obscured all indorsements made on the original paper on which the note was written save one; and that thereafter the plaintiffs removed the green paper, and produced it with the original note showing indorsements thereon and presented both papers op the trial of the case. Plaintiffs claim that they paid to the defendants the amounts shown by the
On this record the trial court gave the following, among other, instructions: “Aside from the credits or amounts it is admitted by the defendants in evidence were in fact paid by the plaintiffs on said note, there are other indorsement’s that appear on the back of said note that the defendants admit in evidence were placed there at the date they purport to bear by the persons having at the time the legal custody of the note. These indorsements are as follows: ‘$147.00 March 3, 1896. $350.00 March 25, 1896. $124.00 May 21, 1897. $300.00 July 9, 1897.’ As these indorsements appear on the back of the note, the presumption is, in th'e first instance, that, in the absence of other evidence, that said amounts were in fact paid on said note at the time said 'indorsements purport to bear date. But this presumption is not conclusive, but it does cast the burden on the defendants to show by the greater weight of the evidence that said disputed credits are contained or included in those admitted by them as before explained.” In another instruction the court said: “The burden rests with the defendants to show by the greater weight or preponderance of the evidence that said disputed indorsements are contained or included in said 'indorsements of.October 19, 1895, and September 18, 1896.” And in still another: “But, as before stated, the burden rests with the defendants in the first instance to show by the greater weight of the evidence that the disputed indorsements are included in said indorsements of October 19, 1895, and September 18, 1896.”
Remembering the nature of this action, and what plaintiffs are compelled to show in order to be entitled to a verdict, these instructions were erroneous. Had all the indorsements been made upon the paper on which the note was originally written, instead of. being obscured or obliterated by the green paper pasted on the' back thereof, it is clear that these inclorsements should be treated in an action of this kind simply as declarations against interest, or as admissions made by
Probably the best statement of the rule is that given by Chief Justice Shaw in Powers v. Russell, supra, as follows: “It may be useful to say a word upon the subject of the burden of proof. It was stated here that the plaintiff had made out a prima facie case, and therefore the burden of proof was shifted, and placed upon the defendant. In a certain-sense this is true. Where the party having the burden of
The vice of the instructions given by the trial court is made apparent by this suggestion. Suppose the testimony offered by defendants with reference to the disputed credits left the matter in equipoise — that is to say, met the presumption stated by the trial court to exist — who, under the. instruction as given, would have been entitled to the verdict? Manifestly, the plaintiffs. But, as we have seen, this is not the true rule. If defendants’ evidence left the matter in equilibrio, then they should have had the' verdict, for the
Other matters are argued by counsel, but, as they are not likely to arise upon a retrial, we do not consider them.
For the errors pointed out, the judment must be and it is, reversed.