
    Wing v. Stewart et al.
    1. Evidence: objection to introduction of altered instrument: practice on appeal. An objection that the court below erred in admitting in evidence a contract, appearing on its face to have been altered or interlined, without first requiring an explanation of the apparent alteration, cannot be entertained by this court, unless the instrument itself is brought up, and the court is thus enabled to determine from inspection whether any explanation was required.
    2. -CONTRACT ADMITTED BUT ALTERATION ALLEGED: BURDEN OB' proof. Where the action was founded upon a contract, the execution of which was admitted in the answer, but the answer denied performance on the part of plaintiff, and alleged an alteration of the instrument since its execution, held, that_plaintiff had no need to introduce the contract in evidence, but only to prove performance on his part, and that the burden was on defendant to establish the alteration relied on.
    
      Appeal from Kossuth Circuit Cou/rt.
    
    Wednesday, December 16.
    This action was brought on a written contract whereby the defendants bound themselves to pay plaintiff for certain books, maps and charts, which they ordered him to deliver to the defendant, George Stewart. The answer admits the execution of the contract, but denies the delivery of the property. ■ It also alleges that the instrument has been altered, since its execution and delivery, in a material respect, without the consent of the makers; the alterations alleged being the insertion, in the body of the instrument, of a provision for the payment by defendants of six per cent interest on the value of the goods from the time of their 'delivery, and the writing on the margin of a provision by which the amount is made payable at the Kossuth County Bank, at Algona, that being in a different county from the one in which defendants live. There was a verdict and judgment for plaintiff, and defendants appeal.
    
      A. F. Gall, for appellants.
    
      George E. Olarhe and J. B. Jones, for appellee.
   Need, J.

On the trial plaintiff offered the contract in evidence. Defendants objected to its introduction on the : ground than its appearance indicated that it had been altered since its execution, and that plaintiff was not entitled to introduce it until this appear-A A anee was explained, and that there was no evidence tending in any manner to explain it. The court also instructed the jury that the burden of proving the alleged alterations was on the defendants. These rulings were excepted to at the time, and are now assigned as error.

It would at this time be a sufficient answer to the objection made to the admission of the contract in evidence to say that its validity depends on the existence of a fact which can be determined only by an inspection of the instrument itself, and the appellants have not brought the instrument into this court, so that we are not able to determine whether the fact upon which, the objection depends exists or not. The circuit court may have determined, upon an inspection of the instrument, that there was nothing in its appearance which called for explanation. The presumption is in favor of the correct-ness of the finding of the trial court, and we will disturb the fipding only upon a showing that it is wrong.

The written instrument contained no evidence of the delivery of the goods, and was not introduced for the purpose of proving that fact, and, as that is the only fact winch plaintiff was required to prove in making out bis case, be need not have introduced it. We find it unnecessary to go into the question (wliicli lias been argued by counsel) whether the rule laid by the text writers, and applied in many of the cases, which requires the party offering an instrument of writing in evidence to explain any apparent alteration or interlineations before introducing it, (see 1 Oreenl.Ev., § 564; 1 Phil. Ev., p. 607,) has been abrogated by our statutes or not; for, conceding the existence of the rule, it is not applicable under the facts of tbe case. The judgment of the circuit court will be

Affirmed.  