Schwalm v. McIntyre

| Wis. | Jun 15, 1863

By the Court,

Paime, J.

It is unnecessary to determine whether or not the court below was right in rejecting the note or contract offered in evidence, until the plaintiff had explained what appeared to be alterations upon the face of it. For even though th'e legal presumption, in the absence of any proof to the contrary, may have been, as claimed by the appellant, that such alterations had been made before delivery, yet the plaintiff himself afterwards testified that the alteration as to the quality of the wood was made by the defendant Boache after the instrument was signed by McIntyre, and without anything to show that it was done by his knowledge or consent. That alteration was certainly a material addition to the contract, and it cannot be claimed that McIntyre was bound by it, as altered, unless it is shown that he authorized the alteration : and the burden of showing that was on the plaintiff. Even though the court erred, then, as to the presumption to be derived from the face of the paper, without any other proof, yet the judgment should not be reversed for that error, when the subsequent proof of the plaintiff showed that to be true which the court had presumed, thereby devolving on the plaintiff the burden of showing that the alteration was authorized by McIntyre, if he wished to charge him.

And no snob authority could be inferred from the fact that McIntyre had signed the instrument as originally drawn, together with Eoache, and left it in the possession of the latter to be delivered to the plaintiff. The appellant’s counsel compare it to the case of an agent employed to negotiate commercial paper, where, unless specially restricted, he may indorse it so as to bind the principal. An indorsement is a usual mode of transfer, and an agent, being employed to transfer, may well be held to have authority to transfer in the usual mode unless restricted. But it is not usual for a mere joint contract- or to add new provisions to the contract, so as to bind his co-contractor. Hence there is nothing on which to found such an implied authority.

The appellant’s counsel rely strongly upon section 99, chap. 137, R. S., which provides that “in actions against two or more defendants upon contracts in writing alleged to have been executed by such defendants as partners or otherwise, proof of the joint liability shall not be required, to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by answer denying the execution of such writing, verified by affidavit.” The answer here did not deny the execution of the contract; hence, it is said, the defendants could not disprove their liability by showing that it had been’ altered. But it has been held that the object of that provision now found in section 92, chapter 137, was merely to dispense with the necessity of proving the signature to a' contract or other writing, and- that the party might prove alterations, although he had not denied the signature. Low vs. Merrill, Burnett’s Beports, 185. And we have come to the conclusion that section 99 can have no other effect, even in cases where it is applicable. And it would seem to be necessary, after the enactment of sections .92 and 98, only in cases where instruments are signed by some firm name or style which does not specify the names of all the parties to the firm, or joint contract. In such case, the paper itself being in evidence, no further proof should be necessary to show that those defendants whose names did not appear on the paper were justly liable with those whose names did appear, unless the execution of the writing was denied. And in any event, the object of these provisions being only to dispense with proof of the signature of the party, he is left at full liberty, in cases where he cannot truly deny the signature, to show all other defenses, among which would be a subsequent alteration of the instrument.

For these reasons the j udgment is affirmed, with costs.