81 Iowa 321 | Iowa | 1890
The books are full of diverse decisions as to whether, on the production of a written instrument, which obviously has been altered, it is incumbent upon the party offering it in evidence to explain its appearance. Some hold that an alteration apparent on the face of the writing raises no presumption either way ; some that it raises a presumption against the writing, and, therefore, requires some explanation to make it admissible; others hold that it raises such presumption only when the apparent alteration is suspicious ; and yet others, that it is presumed, in the absence of explanation, that the alteration had been made before delivery. The authorities are so numerous that we refrain from citing any, but refer to the American and English Enclyclopedia of Law, under “Alteration of instruments,” where many of the authorities sustaining these different views are cited. This question was incidentally noticed, but not passed upon, in Jones v. Ireland, 4 Iowa, 69; Ault v. Fleming, 7 Iowa, 143; Wilson v. Harris, 35 Iowa, 507; and Wing v. Stewart, 68 Iowa, 13. These cases were disposed of upon other grounds, and the question before us has never been directly passed upon by this court. The issues involved in this defense are, whether the policy was altered as alleged, and, if so, whether after delivery to plaintiff, and without authority of the
If the appearance of the instrument or other testimony tended to support the charge of alteration, it was the duty of the court to submit the issue to the jury ; but if the instrument or other proofs did not so tend, then the issue should be withheld, as in any other case where there is no testimony tending to support the allegation. No complaint is made of the/ action of the court in submitting the issue, and we may assume, therefore, that the appearance of the instrument' does tend to support the charge of alteration. The questions as to whether there were alterations, and, if so, whether fraudulent, were fairly before the jury,, and the instruments were competent evidence upon those issues. Question is made whether it was necessary for the plaintiff to offer the policy in support of his action. We think upon the pleadings it was not. The execution of the paper was not denied only in the sense that it was not the policy issued by the defendant, “for that the same has been changed and altered, without their knowledge or consent, since its delivery.” This is not such a denial of the execution of the instrument as is contemplated in section 2730 of the Code. It is contended that the plaintiff, in his reply, confessed the alteration and pleaded in avoidance that it was altered before delivery. The reply will not admit of such a construction. It expressly denies alteration, and, in the sentence wherein it is claimed an avoidance is pleaded, it is said that plaintiff does not admit that any change was made. If this question rested upon the pleadings alone, we would say, under the general rule, that the burden was upon the defendant to establish his allegations that the instruments were altered after delivery, and without
Our conclusion is, upon an examination of the whole case, that the judgment of the district court should be affirmed.