35 Iowa 507 | Iowa | 1872
This action is against the defendant as guarantor of a promissory note upon an express guaranty in these words : “ With recourse on and payment guaranteed by S. Harris.” The defendant answered, admitted the execution and delivery of the note by the makers; admitted that he sold and assigned the same to the plaintiff, and admitted that he indorsed the words, “ with recourse,” and his signature thereto, on the note, but denied the rest of the indorsement. This answer was sworn to.
On the trial the plaintiff testified as a witness, that when he purchased the note _ of defendant the latter wrote on the back of the same the words, “With recourse,” and signed the same and handed it to plaintiff; that plaintiff then said to defendant he wanted the note guaranteed; that Harris then told plaintiff to fix it to suit himself,
This being all the evidence, the court, after instructing the jury that under the pleadings the burden of proof was on the plaintiff to show that the guaranty as declared on was written by Harris or by his direction or with his assent at the time of the transfer of the note, also instructed the jury that the fact that “ the words ‘ on and payment guaranteed by,’ are written in different ink and a different handwriting from the balance of the guaranty on the note in question, does not afford sufficient prima faeie evidence of a fraudulent alteration of the contract to require the plaintiff to explain the alteration.” This instruction is fully sustained by Jones v. Ireland, 4 Iowa, 63, and Auld v. Fleming, 7 id. 143, and taken in connection with the other instructions of the court given in the case could not have worked any prejudice to the appellant.
The judgment is therefore
Affirmed.
