Page v. Danaher, 43 Wis. 221

Page v. Danaher

43 Wis. 221 | Wis. | 1877

Cole, J.

On the part of the defendants it is insisted that the onus was upon the plaintiffs to explain the alteration, and to show that the words “ after due ” were erased before the note was executed. On the other side it is said that no explanation of the change of the note was necessary; that there was nothing suspicious in the appearance of the paper which the plaintiffs were bound to remove by evidence, the legal presumption being that the alteration was made contemporaneously with the execution of the instrument.

The note is a printed form, and it is evident that the words “after due ” were stricken out with a different ink from that with which the body of the note was filled up. It is said *225the alteration bears plain marks of having been made with the same pen and ink as the signature; but this is not obvious from a mere inspection of the writing. The alteration is certainly a material one, and the general appearance of the note raises a suspicion as to its genuineness. Under these circumstances we think the plaintiffs were bound to give some evidence to account for the alteration, and which would warrant the inference or conclusion that the alteration -was made before the instrument became operative. We do not say what that evidence should be, but it should be sufficient to satisfy the jury of that fact. The authorities bearing upon this question are very numerous, and greatly in conflict. It is impossible to reconcile them, as some hold to one rule and others to a, different rule upon almost the same state of facts. We are therefore at liberty to adopt that rule which appears to us most' in accordance with sound principle, and which will most likely promote the ends of justice and best secure the right© of parties. And we therefore adopt substantially the following remarks of Prof. G-reenleaf, as laying down the true rule: “ If, on the production of the instrument, it appears to heme-been altered, it is vneumbent on the pevrty offering it in evidence to eayplmn this appearance. Every alteration on th® face of a written instrument detracts from its credit, and renders it suspicious; and this suspicion the party claiming under it is ordinarily held bound to remove. If the alteration is noted in the attestation clause as having been made before the execution of the instrument, it is sufficiently accounted for, and the instrument is relieved from that suspicion. * * * * But if any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing, but leaves the question of the time when it was done, as well as that of the person by whom, and the intent with which the alteration was made, as matters of fact, to be ultimately found by the jury upon proofs to be adduced by the party offering the instrument in evidence.” 1 Greenl. Ev., § 564. This *226being the view which we adopt upon the subject, it follows that the plaintiffs were bound to account for the change in the note, and should have given some evidence from which a jury might have found that the words “after due” were stricken out prior to or contemporaneously with the execution of the note. We are not aware that this point has been directly passed upon by the courts of this state, though the cases of Low v. Merrill, 1 Pin., 340, and Schwalm v. McIntyre, 17 Wis., 233, so far as they have a bearing upon the question, are in harmony with the rule above laid down.

On the trial, the defendant Melendy was called as a witness for the defense, and asked a number of questions, which were objected to and excluded. Exceptions were taken to these various rulings of the court. We can perceive no valid objection to the witness answering some of these questions. The statute only prohibited the defendant from testifying in respect to any transaction or communication had personally with the deceased (Tay. Stats., 1600, §74; Daniels v. Foster, 26 Wis., 686; Stewart v. Stewart, 41 id., 624); and some of these questions clearly had no relation to any such matter. For instance, the questions when and with what ink the witness signed the -note, whether he struck out the words “ after due ” from the note, and perhaps other questions, might have elicited important testimony. Surely these questions were competent, not naturally calling for any answers in violation of the' statute, and were therefore improperly excluded.

It follows from these views that the judgment of the circuit court must be reversed, and a new trial ordered.

By the Court. — So ordered.