102 Wis. 30 | Wis. | 1899
The most important question for consideration on this appeal is, Did the court err in finding that the words “ or order ” were interlined in the note after its delivery to Rambusch, and without the knowledge or consent of the maker ? That being a question of fact, the determination of it by the trial court cannot be disturbed unless contrary to the clear preponderance of the evidence; but in reaching a conclusion, some rules which are well settled
Second, is the rule that the mere fact that a note has a material interlineation raises no presumption that it was changed after delivery. In this the learned trial judge made a serious mistake. It is not the law that the mere existence of an interlineation in, a writing raises a presumption that it has been fraudulently altered or altered at all since delivery. The presumption of honesty is by no means so easily overcome as that, and the burden of proof put upon the person claiming under such a paper to remove a suspicion of fraud cast upon it. That we deem to be so elementary that a citation of authority to sustain it is hardly necessary. It has often been so held by this court, as shown by numerous instances cited by appellant’s counsel, to which others might be added. Williams v. Starr, 5 Wis. 534; Page v. Danaher, 43 Wis. 221; Gorden v. Robertson, 48 Wis. 493; Maxwell v. Hartmann, 50 Wis. 660; Rollins v. Humphrey, 98 Wis. 66; Prieger v. Exchange Mut. Ins. Co. 6 Wis. 89; Austin v. Aus
The learned counsel for respondents cite Schwalm v. McIntyre, 17 Wis. 233, to the contrary, but the court there did not pass on the question at all. It was said, in substance, that whether a written contract offered in evidence, having a material alteration, should be rejected because of a legal presumption that the alteration was made before delivery, is not decided. Counsel also cite Page v. Danaher, supra, and that appears to be what the learned trial judge relied upon, as in making the ruling he referred to what Mr. Justice Colb there said, overlooking the fact that the change in the note then under consideration was made with a different colored ink and had the appearance of having been made some time after the execution of the instrument. It was to such a paper that the language of the court was directed in saying, “ "Under these circumstances we think the plaintiffs were bound to give some evidence to account for the alteration,” and that it would warrant the inference or conclusion that the alteration was made after the instrument became operative. The following rule by Greenleaf was adopted in that case: “ If, on the production of the instrument, it appears to have been altered, it is incumbent on the party offering it in evidence to explain its appearance.” The words “ appears to have been altered ” do not go so far as to include
In Sayre v. Reynolds, supra, it is said, in effect, there being nothing in the writing itself to indicate that the alteration was made after delivery, all probabilities are against the theory of forgery. And in Wilson v. Hayes, 40 Minn. 531, it is said that, “the signature of a note being admitted, an alteration not having any suspicious appearance is presumed to have been made before delivery.” “ Proof of the signature of the note prima facie establishes the fact that the alteration was made before execution and deliveiy, and casts upon the person claiming the contrary the burden of establishing his contention.” Such is the law by the great weight of authority and according to previous adjudications of this court; though we recognize that there are
We are urged by counsel for respondent to disregard the finding of the trial court as to the note having been altered after delivery, because of his erroneous view of the law. That we cannot do. It does not change the rule that the finding of the trial court on a question of fact cannot be disturbed unless against the clear preponderance of the evidence. Nevertheless the application of correct rules óf law to the evidence in place of incorrect rules must necessarily have the full weight naturally resulting from such a change in the situation, in determining whether the finding is sustained by the evidence or not.
In the light of what has preceded, the situation on one side of the controversy is as follows: The mere interlineation in the note raises no presumption of a fraudulent alteration. The note itself furnishes no evidence casting suspicion upon it. It appears to have been all written by the same hand, with the same ink, at the same time. It is in the form generally adopted among business men. The probabilities are all against the taking of a nonnegotiable note, especially as it appears that it was taken in contemplation of being immediately transferred by Bambusch. The transfer occurred four days after the papers were executed. Hot only is there nothing on the face of the note indicating a fraudulent alteration, but the legal presumption of innocence and all the probabilities are against it. In addition to that the maker of the note seasonably answered in this action under oath, admitting the execution of the note in the form it appeared when offered in evidence. He rested on that admission for a period of about eight months and until after he had an opportunity, when examined otherwise than as a witness, to see the original note with the interlineation therein. It is fair to conclude that it did not occur to him to amend his answer till after he saw the note at the time
The next question that is presented is, Was the evidence given by Smith, as to his personal transactions with Ram-busch, admissible ? If not, there is no evidence whatever in the record of any payments other than those admitted by plaintiff, even if it be conceded that Rambusch was the agent of the owner. The court made no finding on that subject, and there is no exception by the respondent because of such failure to find, so that question is not before us in any form. But if Rambusch was not the agent of the holder of the note, then the transactions between him and Smith were entirely, immaterial and should have been excluded on appellant’s
The singular and manifestly erroneous ruling under discussion, though, contrary to the very letter of the statute and the settled practice as to the status of a deposition taken by one party when offered in evidence by his adversary, would appear at first glance to have some support in Tomlinson v. Ellison, 104 Mo. 105, and Ess v. Griffith, 139 Mo. 322. The learned trial court may have been guided by those cases. An examination of the Missouri statute, however, discloses that the incompetency of a party to testify to transactions with a deceased opposite party, or his agent, is not removable by any statutory method. The statute merely says that the witness shall be incompetent to testify, the same as it provides that a physician or an attorney shall be incompetent to testify under certain circumstances. The court held that the incompetency may be waived in the one case the same as in the other. The decisions have no application to our statute, which provides how the incompetency of a witness shall be waived if at all. The method provided by statute is exclusive.
So the conclusion reached is that the decision of the trial court as to the invalidity of the note, and as to payments
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment in plaintiff’s favor as prayed for in the complaint..