51 Kan. 713 | Kan. | 1893
The opinion of the court was-delivered by
On January 28, 1888, John and Peter Peterson jointly executed a promissory note to the J. I. Case Threshing'Machine Company for $300. The note was payable January 1, 1889, and upon the face of the note upon which action is brought it appeared to bear interest at the rate of 8 per cent, per annum from date. The answer of the' Petersons was a general denial, which was verified. Upon the issue thus formed, the defendants were permitted to introduce testimony tending to show that the note as executed contained no provision for the payment of interest, but had been subsequently altered by the insertion of the figure “ 8 ” in the interest blank. The plaintiff contends that the court erred in permitting proof of an alteration of the note under the verified general denial, and insists that such denial only placed in issue the genuineness of the defendants’ signature
It was averred in the plaintiff’s petition that the defendants executed a promissory note for a stated amount, payable at a specified time, and bearing a given rate of interest. Under the answer, it devolved upon plaintiff to prove the execution of such a note as it had set out in its petition. This could not be done by proof of the execution of a note for $3,000 instead of for $300, nor of a note due at a time other than the one specified, nor by producing a note for a different rate of interest than was alleged. The verified denial being sufficient, it not only placed upon plaintiff the burden of proving the execution of the note as alleged, but it warranted the admission of evidence by the defendants that the note pleaded and produced in evidence, although signed by them, had been materially altered since its execution. The case of Meikel v. Savings Institution, 36 Ind. 355, which is cited by plaintiff in error, recognizes that such proof may be offered by the defendants under a verified general denial, but holds that a different rule prevails where there is a specific and affirmative allegation of alteration in the defendant’s answer. It is said that the note bore no evidence of alteration upon its face, nor anything that would raise a suspicion that it had been changed since its execution. If that be true, the production of the note with the defendants’ signatures attached would be prima fade evidence that the instrument in all its provisions was genuine; and, if the defendants relied upon the defense of material alteration, the burden would be shifted to them to establish the same. The indications of subsequent alterations may be so obvious and suspicious in some cases as to bring discredit
We think the proof of alteration offered by the defendants was properly received in evidence, and, also, that no material error was committed in charging the jury. The court instructed that “ the burden of proof is upon the plaintiff to prove that the note was executed as alleged in its petition,” and, as the answer was verified, the burden, as we have seen, was rightly placed. The special instruction requested by the plaintiff placed the burden of proof upon the defendants in the first instance, and also assumed the existence of facts not established. If it had contained the qualification herein-before indicated, it might properly have been given to the jury-
We find no substantial error in the record, and hence there must be an affirmance of the judgment.
