4 Iowa 63 | Iowa | 1856
The issue to be tried was, whether the note sued on was the note of the defendant. The affirmation of this issue, lay on the plaintiff, and to establish it, 'he gave in evidence to the j ury, the note and mortgage sued on. The defendant thereupon demurred to the evidence, and the cause of demurrer alleged is, “that the note given in evidence, had the words ten per cent written in it, in different ink from the body of the instrument, and the signature of the maker.” ' The demurrer was sustained by the court, because the plaintiff, being ruled by the court so to do, offered no evidence to clear away the cloud adjudged to exist on the face of the note, and judgment was rendered for defendant. Our first inquiry is, what were the facts proved ? The original note and mortgage are, by agreement, produced for in. spection in this court. The mortgage, dated August 29th, 1853, is given to secure the payment of “ the following sums of money, at the times hereinafter stated-, that is to say, the sum of $800, to be paid on or before the 1st day of January, 1854; $500, to be paid within eighteen months from this date; and $500, to be paid in thirty-six months from this date — all
The words ten per cent., are written in pale blue ink, apparently in the same handwriting as the remainder of the note, which is written in pale black ink. The signature of the defendant,’is in a different handwriting, and in black ink, of a different color from that of the body of the note. There is no erasure, and no interlineation on the face of the note. The defendant claims, that taking the note and the mortgage together, the-words in blue ink, cast upon the note such suspicion, that the plaintiff was bound to show that they were made by authority of defendant, or before'the execution of the note; and that otherwise the plaintiff could not recover. Of this opinion was the District Court, in sustaining the demurrer, and rendering judgment for defendant. We think, the judgment of the District Court is errpneous, and that the errors assigned by- the appiellant are well taken.
First There was no sufficient evidence of any alteration of the note. Nothing appears upon the face of the note, to originate a suspicion, except the words written in blue ink, “ ten per cent” There is. no erasure or interlineation, to-insert these words, but they appear in their natural order- and position, as if written when the remainder of the note was written, or inserted in a space left to receive them. It would be carrying the doctrine of presumption very far, indeed, to hold, that because these words appear written with ink of a somewhat different color, they throw such suspicion on the instrument, as to require that the party claiming under it, should explain it away, before he can recover. Admitting the rule to be, that as to negotiable instruments, the burden is upon the party claiming under it, to show that any obvious and material alterations had been lawfully.made, we find no authority in America or England, which holds, that if words
Nor do we think that the case for the defendant, is in any essential degree strengthened by reference to, and inspection of, the mortgage given to secure the payment of 'the notes. If the note sued on had been described therein, as bearing “ six per cent.” interest, we should have been disposed to regard it with suspicion. But it will be perceived, that the mortgage does not purport to set put or describe the notes with accuracy and precision. It gives their dates, amounts, and maturity, each sum “to bear interest from this date.’’ This would mean six per cent, interest, of course, if no other rate were agreed upon and expressed in the note. But the words, “to bear interest from date,” may apply to a note bearing a greater rate of interest, and do not, ex vi termine and necessarily, mean to refer to and describe a note bearing six per cent, interest only. It will also be perceived, that there are other particulars in which the mortgage does not purport to set forth the note according to its very tenor. It does not describe the note as drawn to be signed by more than one person; nor as drawn payable to Merritt, or be -rer. The note reads: “We, or either of us, promise to,pay Jos. tH. Merritt, or bearer." Now, would it not be quite as reasonable to argue from these circumstances, that there had been an alteration of the note ?
We do not think we are going too far, in suggesting that in our opinion, this was not a case in which a demurrer to evidence, ivas the proper mode of proceeding. It is rather unusual in our practice, and is allowable only in the discretion of the court. An offer to demur, is not sir icti-juris. If there be no colorable cause of demurrer, the court should not allow it. The plaintiff relied on the note and mortgage, as sufficient to establish the affirmative of the issue. Confessing this evidence to bé true, by the demurrer, is not the confession of any fact, on which the proper question of law can arise, and ought to be presented for the adjudication of the court. The plaintiff does not admit the alteration of the note, but seeks by giving it in' evidence and presenting it for inspection, to raise a presumption in its favor, and to rebut any suspicion of its alteration. He has the right to require that this presumption be admitted on the record, before he joins in demurrer. Without it, he is not bound so to join; and if he does, the court can pronounce no judgment on the demurrer. Gould on Pleading, 487.
Neither is thefact of the alteration found. This could only be found by the jury. The court had no right to infer it. The execution- of the note being denied under oath, the plaintiff was bound to prove the execution. The note was, however, read to the jury,, subject to the ruling of the court, that the words “ ten per cent." should be explained by the plaintiff, before he could recover. On the Usual proof of the execution of the instrument, it should, without reference to any suspicion of its alteration, have been admitted in evidence, leaving all testimony in relation to such alleged alteration to be given to the jury. The whole inquiry, whether there had been an alteration, and if so, whether in fraud of the defendant or otherwise, to be determined by the appearance of the instrument itself, or from that and other evidence in the case, should have been left for the jury. The whole is a matter of fact, and they must determine it, from the evidence before them. This is the rule established by the Su
The judgment will be reversed'and set aside, and a venire de novo awarded.