Shroeder v. Webster

May 27, 1893

Reporters:: ,
Before:: Kinne

Kinne, J.

Thе plaintiff sues on two promissory notes executed by the defendant, and delivered to one Eads on the days they respectively bear date. One is dated August 13, and the оther August 15, 1888, and the plaintiff claims they were indorsed by Eads to him before maturity. The defendant pleads: First, that the plaintiff is not the real owner of the notes, and that the suit is not prosecuted in the name of the real party in interest; second, that they were obtained from the defendant by Eads by means of fraud practiced upon him;, third, that there is a failure of consideration; fourth, that the notes have been materially altered since their execution.

1. instructions tora nyo‘t“aflea attention. I. Complaint is made because the court failed to instruct the jury that there was no evidence to sustain the defеndant’s claim that the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍plaintiff was not the owner of the notes. It is said that they should have been instructed that under the evidence plaintiff was a bona fide purchaser of them before their maturity, for value, and without notice of equities, if any, existing in favor of the maker. *629There is nothing said in the instructions touching the ownership of the notes, except in the stаtement of the issues, wherein it is said that the defendant claims that the plaintiff is not the real owner of the notes, and that the suit is not prosecuted by the real party in interest. The jury were instructed that it was incumbent upon the defendant to establish his claims by a preponderance of the evidence. As the plaintiff asked no instructions touching this question, he is not in a position to complain that those given were not as full as they might have been, since they were correct as far as they went.

2. pleading: waivere^eor piyII. The plaintiff demurred to the count of the defendant’s answer which pleaded fraud in procuring the notes. The demurrer was based upon tree grounds, and it was sustained as to the first ground, and оverruled as to the second and third grounds. This action of the court is assigned as error. The count demurred to was then amended, whereupon the plaintiff demurred again. This demurrer was overruled, and this ruling is assigned as error. We need not discuss the questions thus raised, as the plaintiff by filing a reply and going to trial on the issues thus formed, waived any objection he might have had to the overruling of his demurrer. 2 McClain’s Digest, p. 316, section 944; Carson & Rand Lumber Co. v. Knapp, Stout & Co., 80 Iowa, 619.

3. assignments of error: form, III. Error is assigned because the court submitted the questions of fraud and failure of consideration to the jury. No particular instruction is ported, out as being erroneous in this respect, but the charge is generally made. The assignment is too general. It does not comply with the stаtute or rules of this court, and we can not consider questions thus raised. Code, section 3207; Rule 51; Blair v. Madison County, 81 Iowa, 313.

*6304. appeal: reo«on. IV. Error is assigned in the overruling of the plaintiff’s motion to strike out certain testimony. An examination of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the record fails to show any ruling on the motion, and the presumption in such a case is that the motion was waived. Gable v. Hainer, 83 Iowa, 457; Rosenthal v. Bilger, 86 Iowa, 246.

5. Alteration oí tarden ofts: proo£V. Counsel insist that the court erred in giving the eleventh division of his charge to the jury. By it the ÍU1T Were told that they found that either or both the notes in suit had been altered since their execution, by crossing out the word “order” printеd therein, and writing in place thereof the word “bearer,” such an alteration would be a material one, “and, when found to have been so made, the burden of prоof is on the plaintiff to show that such alteration was made with the knowledge and consent of the defendant; and if you find that such an alteration was made in both of said notes after the execution thereof, and if you further find that the plaintiff has failed to establish by a fair preponderance of the evidence that it was done with thе knowledge and consent of this defendant, then your verdict should be for the defendant, even though you also find that plaintiff bought and paid for said notes before they matured, without knowledge of the equities existing between the payee, Theo. Eads, and the defendant.” It is said that this was an incorrect statement of the law, and it is claimed that undеr the instruction the burden was on the plaintiff to establish the alteration, and also to show that it was made with the defendant’s consent. We do-not so understand the instruction.- It clearly recognizes-the fact that the burden of proving the alteration is on the defendant, but, when that is done, then it is incumbent on the plaintiff to show that the alteration was-mаde with the defendant’s consent. One of the material matters pleaded by the defendant was the *631fact that the notes had been altered since their execution and delivery. In the third paragraph of the charge the jury are told that the burden is on the defendant to ‘establish the averments of his answer. Under all the instructions it is clear thе jury could not have understood that the burden was on the plaintiff to show the alterations.

Was the instruction objectionable, then, in’ directing the jury that, after the defendant had established the fact that the notes were materially altered, the burden was on the plaintiff to show that such alteration was made with defendant’s consent*? In the case of Odell v. Gallup, 62 Iowa, 253, it was simply held that when defendant pleaded the alteration it was incumbent upon him to iprove it. In Wing v. Stewart, 68 Iowa, 13, it was held that, even if it was the rule that one offering an instrument of writing in evidence was bound to explain ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍any apparent alteration in it before introducing it, it was not applicable under the facts of the case. In Warren v. Chickasaw Co., 13 Iowa, 588, plaintiff offеred the instrument in evidence, to which the defendant objected, claiming that the words “or bearer” had been inserted therein without his knowledge or consent. The court hеld that, the execution of the instrument not being denied under oath, it‘was incumbent on the defendant to show that the alteration was made without the defendant’s knowledge or consent.

Hagan v. Merchants and Bankers Insurance Co., 81 Iowa, 321, was an action on a policy of insurance. The plaintiff offered his policy in evidence. The defendant objected, on the ground that it was apрarent on its face that it had been changed, and hence the burden was on the plaintiff to account for the change before he could introduce the рolicy in evidence; also because the plaintiff admitted the change in his reply, and had offered no evidence tending to avoid it. The objection was ovеrruled. The defendant asked an *632instruction to the effect that, if the jury’ found there was ground for suspicion on the face of the instrument that the policy had been altered as alleged, then the burden was upon the party offering it in evidence to show when such alteration took place, and by whom it was made, and the intent of it. This was refusеd, and the court instructed the jury that the burden of establishing the alteration after the delivery of the policy was with the defendant. It will be observed that but two questions were thus raised: First. Must the plaintiff, in a case where it is apparent on the face of the instrument that it had been changed, account for the change before he can intrоduce the instrument in evidence? Second. Was it incumbent on the plaintiff, when the face of the instrument showed the change, to show when and by whom such change was made? This court held thаt, ordinarily, an apparent alteration raised no presumptions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as to when the change was made, and the burden was with the one pleading that an alteratiоn was made after delivery of an instrument, and without the maker’s consent, to establish such facts.

The questions in that case were not like.those presented in the case at bar. If they had been, we can not doubt that the case of Robinson v. Reed, 46 Iowa, 220, would have been followed. In the latter case it is expressly held that, after the alteration is established, the law imposes upon the plaintiff the burden of showing facts supporting the sufficiency of the indorsement upon which the action is brought. This case was not referrеd to in the Hagan case. The case of Robinson v. Reed is decisive of the questions presented in the case at bar, and the instruction complained of is in harmony therewith. We believe the law as herein announсed is correct. Whitmer v. Frye, 10 Mo. 348; Cochran v. Nebeker, 48 Ind. 459; Herrick v. Malin, 22 Wend. 388; Smith v. McGowan, 3 Barb. 404; Simpson v. Davis, 119 Mass. 269; Town of Solon v. Bank, 21 *633N. E. Rep. 170; Croswell v. Labree, 81 Me. 44; 16 Atl. Rep. 331; Warder, Bushnell & Glessnor Co. v. Willyard, 49 N. W. Rep. (Minn.) 300; Burgwin v. Bishop, 91 Pa. St. 336; Eckert v. Louis, 84 Ind. 99.

*6. -: presumption: lnstruo” VI. Objection is made to the twelfth paragraph of the charge given to the jury. In it the court, in effect, told the jury that, if they found that the motes had been altered since their execution in the manner claimed, then the law presumed that such alteration was made with a fraudulent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍purpose, and by the payee or the plaintiff. We understand this instruction to state the law as announced by this court in Robinson v. Reed, supra, and in the cases therein cited. We see no reason for departing from the doctrine of that case.

We have considered all of the errors properly assigned, and-reach the conclusion that the judgment ■of the court below must be affirmed. ■