157 Wis. 289 | Wis. | 1914
Lead Opinion
On July 31st John Heineman, the grandson of plaintiffs, aged nineteen, came to the bank with the savings bank book and asked to withdraw the deposit. He was told that a receipt for the money signed by the plaintiffs, or one of them, must be delivered to the bank before the deposit would be paid, and was given a blank receipt for execution. Later in the day he returned with it bearing the signature of Monica Heineman. The bank then asked that the genuineness of the signature to the receipt be vouched for by some one known to its officers, and one E. B. Martin certified that it was genuine, whereupon the bank paid the amount of the deposit with interest to John Heineman.
The defendant, to prove payment, introduced the receipt in evidence. The court then received evidence on behalf of plaintiffs given by Mrs. Heineman to the effect that her signature to the receipt was obtained by fraud on the part of John Heineman; that he engaged her in conversation on the subject of writing and declared she was so old she could not write her name; that she said she could, whereupon he produced a piece of paper, held his hand over the greater part of it and told her to write her name on the lower edge where he indicated, and that she did so; that she had no idea she was signing a receipt or any other paper of any importance, but signed only to show him she was not so old as to be unable to write her name. The defendant objected to this evidence on the ground that it raised an equitable issue, namely, one of cancellation of a written instrument, which was not triable to a jury. The objection is untenable. When the validity of a written instrument is in issue it is always competent, in an action at law as well as in a suit in equity, to show that the instrument never was executed; that its signature was
A majority of the court is of the opinion that the question of defendant’s negligence in paying the savings deposit under the circumstances shown by the evidence, as well as the question of the negligence of Momea Heineman in. signing the receipt, were properly submitted to the jury. The trial court, however, in instructing the jury relative to the latter question, said:
“Upon this question as to whether Monica Heineman at that time did or did not exercise ordinary care and prudence the defendant bank has the burden of proof; and before you can determine or find that Monica Heineman failed to exercise ordinary care and prudence in placing her signature upon such order you must be satisfied of such failure on her part by a preponderance of the evidence.”
This instruction was clearly erroneous. The genuineness of the signature was admitted by plaintiff. Its effect was sought to be avoided by alleging and proving that it had been .obtained by fraud. It is elementary that he who alleges fraud or seeks avoidance of an instrument on the ground of fraud has the burden of proving the fraud by clear and satisfactory evidence. Lepley v. Andersen, 142 Wis. 668, 125 N. W. 433. We have held that where an instruction as to a material issue places upon a party a greater burden of proof than the law requires and the answer is unfavorable to such party, prejudicial error is committed (Carle v. Nelson, 145 Wis. 593, 130 N. W. 467), and that sec. 3072m, Stats. 1911, cannot save the judgment. Id. The error was peculiarly prejudicial in the present case, for the defendant was powerless to introduce evidence to dispute the story told by Monica Heineman as to how she! was induced to sign the receipt. Had the. jury been properly instructed that the burden of proof was upon the plaintiffs to satisfy the jury by clear and
By the Court. — Judgment reversed, and cause remanded for a new trial.
Dissenting Opinion
(dissenting in pari). I agree that the instruction referred, to in the opinion of the court was erroneous. I think the complaint should be dismissed because the evidence failed to show any negligence on the part of the bank in paying over the money.
