25 N.M. 430 | N.M. | 1919
OPINION OP THE COURT.
(After stating the facts as above). Two questions are presented by this appeal: First, the ruling of the trial court that the alteration apparent on the face of the writing, raising the amount from $500 to $600, was not of a suspicious character, so as to place the burden of explaining the same upon appellee; and, second, the ruling of the court that the action was not barred by the statute of limitations. The trial court found as follows:
“That saicl instrument on its face shows no erasure or attempted erasure, and that said alteration, so apparent on the face of said instrument, is not an alteration of suspicious character, so as to place the burden of proof upon plaintiff to explain the same.” To which finding defendant then and there objects and excepts.
“That the proof fails to show that said alteration of said instrument was made after its execution and delivery by the defendant or at such other time as not to be binding upon him.” To which finding defendant then and there objects and excepts.’
The authorities on the subject are in hopeless confusion. As is said in a note to Burgess v. Blake, 128, Ala. 105, 28 South, 963, 86 Am. St. Rep. 78, at page 128 of the last citation:
“Where the alteration is apparent, the authorities are hopelessly divided as to the presumptions arising from such apparent alteration. Any attempt to reconcile them would be useless, and an accurate classification of their varying views is impossible. They seem to fall, however, into four general classes, each of which is representative of a view opposed to that of the others: (1) One line of cases holds that no presumpfion arises from an alteration apparent on the face of the instrument; but that the entire question of the time when the alteration was made is for the jury to consider in the light of all the evidence, intrinsic and extrinsic. (2) Another holds that an alteration apparent on the face of the paper raises a presumption that it was made after the execution and delivery. (3) A third line of authorities holds that the presumption that the alteration was made after execution arises only where the alteration or 'the facts surrounding it are suspicious; and, finally, it is held by another group of courts: (4) That an alteration, apparent on the face of the paper, is, without explanation, presumed to have been made before delivery. This classification of the authorities is, at best, approximate only, as many of the «courts have taken compromise positions, holding the presumption to depend upon various matters, such as denial under oath that the paper was executed, the nature of the instrument — i. e., whether a specialty or not, etc.”
“While the different views presented in the three paragraphs as to the presumptions arising- from apparent alterations are seemingly in hopeless conflict, yet an examination of the decisions leads to the opinion that, whatever doctrine may be theoretically adhered to in any .particular jurisdiction regarding the presumption as to the time of apparent alterations, yet in the greater number of cases the person who claims under or offers in evidence an installment which is at all suspicious by reason of an apparent alteration will be required to explain and remove the suspicion.” 1 R. C. L. “Alteration of Instruments,” par. 77.
The words “suspicious alterations,” as used in the above quotation, have been given many different meanings by the abjudicated cases. No definite rule can be deduced to determine the circumstances connected with an apparent alteration which will be regarded as suspicious and will require explanation by the party relying on the altered instrument. 2 C. J. “Alteration of Instruments,” par. 199. The weakness of an objection to the rule above will be found in the following quotation:
“This furnishes no definite rule by which to determine when the burden is upon the holder to explain the alteration and when it is not. Who is to determine, and by what test, whether the alteration is suspicious? * * * And it seems to us that the rule just referred to amounts to nothing more than saying that in some cases' this intrinsic evidence may tend to prove that the alteration was made after delivery, and therefore throw the preponderance on that side, unless the holder of the instrument produces extrinsic rebutting evidence. Thus construed, we would find no special fault with the rule. But it is incorrect to call this a presumption of law; it is simply an inference of fact drawn from evidence in the case.” Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 4 L. R. A. 196, 12 Am. St. Rep. 754.
In the present ease the lower court found the alteration to be so apparent that it was not an alteration of a suspicious character. We have inspected the instrument and agree with the conclusion reached by the trial judge. But the question before us is one as to the burden ot proof, when an instrument which has been apparently altered is sued upon by one who will benefit by such alteration. The rule to determine this question, which seems to us best and supported by reason of authority, is that no presumption arises from an alteration apparent on the face of the instrument, but that the entire question of the time when the alteration was made is for the jury to consider in the light of all the evidence, .intrinsic and extrinsic.
It is evident from the adjudicated cases that the courts which maintain the position that no presumption arises from an apparent alteration of an instrument in fact hold that such instrument is not an altered instrument within the meaning of the phrase. They hold, in effect, that the instrum'ent as changed or altered is the instrument which the parties executed. As before stated, we believe this to be the proper rule. To modify this rule, by casting the burden of proof on the plaintiff or the defendant, according as the trial judge may deem the alteration suspicious or not, changes a rule of law into an inference of fact, which inference of fact the court should not pass upon, but leave to the jury.
The trial court, in holding that the apparent alteration was not one of a suspicious character, so as to place the burden of proof upon the plaintiff, reached, the cor - rect conclusion, and properly! placed the burden of proof upon the defendant, who alleged that the instrument had been altered. We hold, however, that the correct rule to be applied in case of apparent alteration of instruments is this: That there is no presumption from such apparent alteration, and that the question of alteration and its binding effect on the parties after the introduction of the instrument in evidence, are questions to be considered in the light of all the evidence, extrinsic and intrinsic, and decided by the judge sitting as a jury, or by the jury under proper instructions.
. “Questions as to the rights and remedies of depositors have generally, if not altogether, arisen in actions by and against banks; but it is every day’s practice for persons having surplus funds to deposit them with merchants, lawyers, and other business men, and -they are received as often as matters of favor to the person depositing as with a view to the advantage of the person receiving; and I apprehend that such persons believe that, before they can be sued for the money, a demand must be made of the deposit. Such a rule not only gives effect to the intention of the parties, but it is essentially just. Why should a demand be held necessary in the case of a deposit in a bank, and unnecessary in the case of a deposit with a private person? In both cases the depositor is not an ordinary borrower; that is to say, they do not solicit the deposit for their own benefit exclusively. In both they hold themselves out as willing to receive deposits, and to pay interest, perhaps, thereon. The same considerations which render proper demand before suit in the case of the one are equally operative in the case of the other. * * * I entertain no doubt but that the transaction in question was a deposit, and that the rights and liabilities of the parties are precisely the same as if the money had been in a bank; and hence there was no right of action against the depositaries until actual demand made, and the statute of limitations began to run from the same time, if such is the law, then the demand in question was not barred, and the judgment should be affirmed.”
Finding no error in the record, the case is affirmed; and it is so ordered.
