
    Franklin v. Baker, Ex’r.
    
      Promissory notes — Alteration of — Burden of proof when pleaded as a defense.
    
    Where it is claimed by the defendant, in a suit upon a promissory note, or similar instrument, that the note has been altered since its execution, the burden is upon him to prove that it was so altered; the presumption being, in the absence of anything to the contrary, that any alteration appearing on the face of the paper, was made at or before the time of its execution.
    (Decided May 5, 1891.)
    Error to the Circuit Court of Licking county.
    The suit below was upon a promissory note for the sum of $2,100, claimed by the plaintiff to have been made and delivered him by the decedent D. M. Baker in his lifetime, on April 5, 1882. Credits amounting to $1,100 were allowed, leaving a balance of $1,000, for which with interest judgment was asked — the claim having been rejected by the executor. The defendant in his answer denied the execution and delivery of the note by the testator.
    On the trial the plaintiff, having produced evidence of the genuineness of the signature of the maker to the note, offered it in evidence, to which objection was made by the defendant, on the ground that it appeared to have been altered in the date, in the figures in the mai'gin of the note, and in the amount! for which it had been given; and that there was no evidence accounting for such changes. This objection was overruled, and the note admitted, to which the defendant excepted. No other evidence was offered by the plaintiff.
    And, therefore, the defendant having offered his evidence and rested, requested the court by his counsel to charge the jury:
    “ 1. That though the jury may find from the evidence that the signature of D. M. Baker on the note in question is his genuine signature, the plaintiff is not entitled to a verdict, if the jury further find from an inspection of the nóte, that there have been suspicious alterations as to the date and amount, or either, and that such alterations have not been explained to their satisfaction by plaintiff.
    “2. That the burden is upon the plaintiff to satisfjr the jury by a fair preponderance of the evidence not only that E>. M. Baker signed the note, but that the note when signed by him was in the same condition as to amount and date, as it now purports to be, and that without such proof the burden does not shift to the defendants to satisfy the jury that the alterations claimed were made after he signed the note and without his consent.”
    These requests being refused, the court thereupon charged the jury as follows:
    “This action is brought upon a promissory note for $2,100, mentioned in the petition. The defense is that D. M. Baker, the decedent, did not make or deliver the note. This defense involves three points: That D. M. Baker did not make the note, did not deliver it, that there was no consideration for it, and that it was altered. As to the consideration I charge you that the note, if made by Baker, implies a consideration. But it is not a good note unless it was delivered by Baker to Franklin, but if you find the note in the hands of Franklin, and it was made by Baker, you may presume it was delivered.
    “The first question is, did Baker sign the note? Upon that question the burden of proof is on the plaintiff, and he must satisfy you by a fair preponderance of evidence that Baker did sign the note. If he fails to satisfy you, your verdict will be for the defendant. Upon this question you can take into consideration the testimony of the experts, persons who by their experience in the comparison and observation of handwriting, are permitted to give their opinion whether the signature to the note in question is by the same hand as the signature to the deed and will, which have been proved to be the genuine signatures of Baker. With these opinions and the other evidence in the case, you are to say whether the same hand wrote all these signatures. You are to judge of the weight of the testimony of these experts. If you are not satisfied that they are right in their opinions, your verdict will be for the defendant. If you are so satisfied, you may go to the questions of alterations. These alterations, as claimed by defendant, are in the change of the date from April 4, 1879, to April 5, 1882, and in the body of the note, a change from ten dollars or twelve dollars to $2,100. If these changes were made they are material changes, and if Franklin, without the consent of Baker, made the alterations after the note was delivered, he has no right of action on this note. Has the note been altered? The figures at the left hand top of the note are-no part of the note, and a change in these figures is not material, but you may look at any alterations in those figures upon the question whether there was any alteration of the date or amount in the body of the note. Still the question is, have any alterations been made?
    “ Upon this question, the burden of proof is on the defendants to satisfy you that these claimed alterations were made after it was signed. You may look at the note to see whether any alterations have been made in either particular. If you find that there is no alteration, assuming that the signature of the note is the genuine signature of Baker, your verdict will be for plaintiff. If the note was altered, and the burden of proof of that, as I have said, is on the defendants, you will then inquire whether the alteration was before or after D. M. Baker signed the note. If you find it was altered after Baker signed the note, the burden of proof then will be upon the plaintiff to satisfy you that it was altered with the consent of Baker.
    “ If the note was signed after it was altered, it is a good note. If it was signed before it was altered and the maker consented to the alteration, it is a good note.”
    The defendant excepted to that part of the charge placing the burden on him to show that there was an alteration, and, if so, that it was made after the note was delivered. The jury found for the plaintiff in the sum of $1,225.77.
    A motion for a new trial was made on the ground, among other things, that the court misdirected the jury. The motion was overruled and judgment rendered for the plaintiff ; which, on error, the circuit court reversed, for the refusal of the court to charge as requested in the first request, and in the charge given on that subject.
    
      J. A. Flory and J. W. Owens, for plaintiff in error.
    
      The defendant beiow was not entitled to have the instruction given.
    1. Because it would have allowed the jury, by mere inspection of the note, to the exclusion of all the other evidence, to find that something was suspicious. The plaintiff was entitled to the benefit of all the evidence.
    2. Because to have submitted to an ordinary jury, in that way, whether an alleged appearance was suspicious, without also giving some future instruction, as to what erasures upon a printed form would be alterations, and what would or what would not be suspicious, would have been misleading and dangerous — it is not every erasure upon a printed blank that would be suspicious.
    3. Because defendant was not entitled to- have the court say to the jury that suspicious appearances, if there were any, must be explained by the plaintiff — that unless the plaintiff explained them, the verdict must be for defendant — to have so instructed the jury would have led them to believe that the explanation must be found in the testimony produced by the plaintiff. It is needless to say that it was sufficient for plaintiff if the explanation was found in the proof — from whichsoever side it came.
    4. To submit the question of suspicion, or not, to the jury, is also to submit to them whether the alleged alteration is a material one, for it could not be suspicious if not material; but it would have been error to submit to the jury the question of materiality. 2 Parsons on Contracts (4 ed.), 226; Hill v. Calvin, 4 How. Miss. 231; Bowers v. Jewell, 2 N. H. 543; Martendale v. Follett, 1 N. H. 95.
    The question, as to which side has the burden of showing or proving how or when an erasure or an interlineation or the like was made on a written instrument, is one of considerable importance to the profession and to parties. In this case it is peculiarly so, as the death of Baker has closed the mouths of both parties to the note. The question has not properly been settled, or regarded as settled in Ohio, and should of course be determined in the light of the business methods, the custom and usage of farmers, mercantile men, educated men and ignorant men, that are known to prevail. Particular attention is invited to the language of the Court in Wilson v. Hayes, 40 Minn. 531.
    The Supreme Court of the United States, in several cases, have held the law to be that, in the absence of any proof on the subject, a change, erasure or interlineation, was* made before the instrument was delivered. Little v. Herndon, 10 Wall. 26; approved in Hanrick v. Patrick, 119 U. S. 156; Printup v. Mitchell, 17 Ga. 558; Beman v. Rubel, 20 Vt. 205; 1 Phil. Ev. Cowen H. & E., notes top page 502, and note; Dailey v. Taylor, 11 Conn. 531; Hunt v. Gray, 10 Am. Rep. 232, 234; Slee v. Bloom, 10 Am. Dec. 273, note; 1 Geenleaf Ev., late ed., sec. 564, note; Crossman v. Crossman, 95 N. Y. 146-152; Huntington v. Fitch, 3 Ohio St. 445-450; Berry v. R. R., 26 Ohio St. 673; Wallace v. Jewell, 21 Ohio St. 163; Wilson v. Hayes, 40 Minn. 531.
    The bill of exceptions and record show that this instrument has not passed through any successive hands, but was still held by the payee. They also show that the alleged erasures and interlineations or the like, are not in either different ink or different handwriting from the other parts of the note. Therefore the reasons mentioned do not exist in this case, and the general rule that fraud or crime will not be presumed should apply. The following cases among many others support this claim. Gooch v. Bryant, 13 Me. 386; Beaman v. Russell, 20 Vt. 205; Cumberland Bank v. Hall, 1 Halst. 215; Clark v. Rogers, 2 Greene, 147; Rankin v. Blackwell, 2 John. Cas. 198; Bailey v. Taylor, 11 Conn. 531; Wilson v. Hayes, 40 Minn. 531; Stewart v. Preston, 1 Florida, 10; Thacker v. Booth, 6 S. W. Rep. 460; Gordon v. Robertson, 4 N. W. Rep. 193; Odel v. Gallup, 17 N. W. Rep. 502; Neil v. Case, 25 Kan. 510.
    
      Chas. H. Kibler, for defendant in error.
    The rule, contended for by plaintiff in error, would be an encouragement of the tampering with securities. Merrick v. Bowry, 4 Ohio St. 60, 71; Wallace v. Jewell, 21 Ohio St. 163, 172.
    
      The burden is on the party offering the instrument in evidence, or producing it, if it appears to have been altered, to explain the appearance. 1 Grreenleaf on Evidence, sec. 564. To the same effect are the following authorities: 3 Phillips on Evidence, 152; Huntington v. Fitch, 3 Ohio St. 445, 449, 450; Albe v. Road, 6 McLean, 106; Tilton v. Ins. Co., 7 Barb. Sup. Ct. 564; Wilde v. Amsley, 6 Cushing, 314; Simpson v. Stackhouse, 9 Barr, 186; 2 Parsons on Con., 722, 723; Byles on Bills, top pages 480 and 481, and note.
    See, also, upon the rule as to alterations of negotiable instruments: 1 American & Eng. Ency. of Law, 514, and authorities cited in Daniel on Neg. Inst., secs. 1417,1418; 2 Taylor on Ev., 1546, sec. 1819; Randolph on Com. Paper, sec, 1784; see 1 Am. & Eng. Ency. of Law, 512, subd. 4, and authorities cited.
    The defendant in error having claimed and asserted that there were suspicious alterations upon the note, it was either the duty of the court, upon inspection, to have settled the question, or it should have been left to the jury to determine it. The court did neither. Neil v. Case, 23 Kans. 510; Organ v. Osborn, 9 Bax. (Ten.) 459.
   Minshall, J.

The plaintiff, Franklin, brought suit upon a note claimed to have been made by D. M. Baker, deceased, for $2,100, dated April 5, 1882. The defendant denied the execution of the note. On the trial, the plaintiff having introduced proof of the genuineness of the maker’s signature, offered the note in evidence, which was admitted over the objection of the defendant. The plaintiff offered no other evidence. At the close of the evidence the defendant, claiming that the note had, as appeared from its face, been altered, asked the court to charge the jury, that if they find from an inspection of the note, that there has been suspicious alterations as to the date and amount, or either, and such alterations have not'been satisfactorily explained by the plaintiff, he is not entitled to a verdict. This the court refused, and thereupon charged the jury, that an alteration would not invalidate the note unless made after its execution, and- that for the' purpose of a defense, the burden was on the defendant to prove that it was so altered.

Whether the note has been changed at any time is not clearly apparent from the face of it. The only claim of the defendant is, that an apparent blurring indicates that the figures 5 and 82 in the date, “April 5, 1882,” have been changed from the figures 4 and 79, respectively; and that there are some indications that the amount, “twenty-one hundred,” written in the body of the note, has been changed from “ ten hundred ” or “ twelve hundred,” and that a corresponding change has been made in figures standing for the amount on the margin of the note. A photographic copy is inserted in the bill of exceptions; and from this it would be difficult to say whether it suggests any change to have been made in the note before or after its execution. But conformable to the charge of the court, and the view we take of the case, the note may appear on its face to have been changed at some time after it had been written, without affecting its validity. For if it appears to have been changed, then the question arises whether it was so changed after or before it was executed and delivered. If before, that would not affect its validity. Such changes are frequently made, more frequently now than when men of business had less skill, and employed others to do for them what they do now as a matter of every day’s practice for themselves. But if the change was made afterwards, and without the consent of the maker, the alteration constituted a crime, which the law never presumes in the absence of proof. The only presumption the law indulges in such cases is in favor of the honesty and good faith of what appears to have been done. Hence it was the duty of the jury to presume, until the contrary appeared, that any erasure or interlineation to be found on the note had been made before the note was executed, since that presumption not only consists with the integrity of the party who made it, but is conformable to human experience, at this day, of the connection between such changes to be found in promissory notes and other written instruments, and the time when they were made. Wilson v. Hayes, 40 Minn. 531, 536.

We do not see that the defendant’s request, the refusal of which is assigned for error, was any more proper than saying to the jury, that the burden is on the plaintiff in any case to explain an alteration in the paper sued on, where it is apparent that a change has been made. How can it be determined from a simple “inspection of the note,” that an alteration was made after the signature to it? It may satisfactorily show, as in the case of an erasure or interlineation, that it was changed after it had been written, but to assume that such change was made after the note was made and delivered, without any extrinsic proof, is to presume, without evidence, that the change was fraudulently made, when, as a matter of fact, the chances are more than equal, that it was made at or before the execution and delivery of the instrument, and to conform it to the intention of the parties.

The cases elsewhere are not uniform on the subject. Some hold that alterations apparent on the paper must be explained by the party producing it, and, in the absence of such explanation, it is presumed to have been made after the execution of the instrument, and so fraudulent. This it would seem was the earlier rule at common law as to deeds and similar instruments; but its inconvenience was such as to cause it to be abandoned as early as the time of Lord Coke. And the rule as to such instruments in England, and generally in this country, is, if nothing appears against the alteration, to presume that it was made at the time of making the deed, and not after. Bailey v. Taylor, 11 Con. 531, 534; Speake v. United States, 9 Cranch. 37; Wickes v. Caulk, 5 Harr. & Johns. 36; Hanrick v. Patrick, 119 U. S. 156, 172; Little v. Herndon, 10 Wall. 27, 31. In the latter case, cited with approval by Justice Mathews in the preceding case, Justice Nelson said: “In the absence of any proof on the subject the presumption is that the correction was made before the execution of the deed. In a recent case in the Queen’s Bench, Lord Campbell, Chief Justice, in delivering the opinion of the court, after referring to the note in Hargreve & Butler’s Coke Littleton, 2255, where the rule was asserted, observed: ‘ This doctrine seems to us to rest on principle. A deed cannot be altered after it has been executed, without a fraud or wrong; and the presumption is against fraud or wrong.’ ” Doe v. Catomore, 16 A. & E. 745.

In England a different rule has been adopted as to commercial paper; but, as clearly pointed out in Bailey v. Taylor, supra, and in Beaman v. Russell, 20 Vt. 205, this results from the provisions of their stamp act. There, as said by Hall, J., in the case last cited, “ Any material alteration of a bill, after it has issued, or, in other words, after it is in the hands of a party entitled to make a claim upon it, is held to make a new bill of it, rendering a new stamp necessary. Under the stamp act, any alteration.renders a bill void, that would make it invalid at common law; and it may be void under that act, though otherwise perfectly valid. For the consent to the alteration, by the party sought to be charged, makes the bill'valid at common law; but, under the statute, the consent of all the parties to the bill is of no importance. If the bill be altered after it issues, no matter by whom, it becomes another bill, and requires a new stamp in order to make it evidence.”

It is evident that decisions based upon considerations not applicable to our own country are entitled to- no weight as authority in its courts; and that the decisions of courts in this country in which those decisions have been simply followed as precedents, are entitled to no greater weight. And, an examination will show that they have been disregarded by courts of distinction about as often as they have been followed.

In Cumberland Bank v. Hall, 1 Halstead, 215, a new trial was awarded by the Supreme Court of New Jersey after a full argument, for the misdirection of the court on the trial, in charging the jury that the plaintiff was bound to account for an alteration on the note, and unless it was shown to have been made before the execution of the note, the law presumed it to have .been done afterwards.

So in Gooch v. Bryant, 13 Maine, 386, it was held that the alteration of a figure in the date of a note, proved only by inspection, is not of itself evidence, that the alteration was made after the signature and delivery. To hold otherwise, the court said, “would be a harsh construction; exposing the holder of a note, the date of which had been so altered, as to accelerate payment, or to increase the amount of interest, to a conviction of forgery, unless he could prove that it was done before the signature. It would be to establish guilt by a rule of law, when there would be at least an equal probability of innocence.”

In Odel v. Gallup, 62 Iowa, 253, it was held that the defendant in a suit on a promissory note, who alleges that it has been altered since its execution, has the burden of proof to establish the alteration. It is true that, in this case, the court entered into no discussion of the question and cited no authority to the point; and, for the reason probably, that it appeared too plain on principle to require it to do so.

In Neil v. Case, 25 Kan. 510, the court, without laying down any definite rule upon the subject, said, “ If there is neither intrinsic nor extrinsic evidence as to when the alteration was made, it is to be presumed, if any presumption is said to exist, that the alteration was made before, or at the time of the execution of the instrument.”

In Bailey v. Taylor, 11 Conn. 531, where the question was quite elaborately considered, the rule is stated as follows: “ Where there is an alteration in an instrument under which a party derives his title, apparently against the interest of that party, the law does not so far presume that it was improperly made, as to throw upon him the burden of accounting for it; but the jury are, from all the circumstances before them, to determine whether it was made before or after the execution of the instrument; and if after, whether it was with or without the assent of the adverse party ; and consequently, whether it rendered the instrument invalid or not.”

In Wilson v. Hayes, 40 Minn. 531, the question was considered by Mitchell, J., upon principle, and the conclusion reached, in a carefully prepared opinion, that there is no ground for any distinction as to the rule of evidence in regard to an alteration, between negotiable paper ánd other instruments; and he observes that the tendency of many of the late American authorities is to repudiate any such distinction. The judgment below was reversed, for the error of the court in saying to the jury, that the presumption was that an alteration apparent on the note, was made after its execution, and that the burden was on the plaintiff to remove this presumption.

See further: Printup v. Mitchell, 17 Ga. 558; Davis v. Jenney, 1 Met. 221; Gorden v. Robertson, 48 Wis. 493, 496; Rankin v. Blackwell, 2 John. Cases, 198.

The case of Huntington v. Fitch, 3 Ohio St. 445, is not in point. There the only question was as to the materiality of the change that had been made in the note, — the erasure of the name of the surety. The facts were not in dispute. The court simply held that the erasure of the name of the surety, at his request and with the permission of the payee, did not affect the rights of the principal, and so did not amount to such an alteration as would invalidate the note. The observations of the court may, conformable to a view taken by many courts at that day, indicate an opinion that the burden of explaining what are termed alterations of a suspicious character, is on the plaintiff. But no such question was before the court, and its remarks should be confined to the case it had under consideration.

The character of an alteration may be such as, in connection with other circumstances, would persuade the mind that it had been fraudulently made after the execution of the instrument. But no such inference should be drawn from an alteration standing alone, however apparent upon the face of the paper. There is no sounder principle applied by the law to the affairs of men, than that which assumes what appears to have been done, was done with a proper motive and conformable to its requirements, until the contrary appears; and the reason is that the assumed fact is generally found to conform to the truth. It is true that we are without any definite statistics, but, the low estimate of our race entertained by the pessimist aside, we may safely trust our own observation and experience for the assertion, that ninety and nine alterations to be found on the face of written instruments were lawfully and properly made, for every one that had its origin in a fraudulent purpose. The law in its wisdom trusts much to the general honesty of men, indeed if human depravity were such that it could not — if honest men were the exception and rogues the rule, civil government would be impossible. Therefore the question as to when an alteration was made in a written instrument, is one of fact, to be determined from a consideration of all the circumstances; and where it is claimed to have been made for a fraudulent purpose, the burden of establishing the fact must, according to the reason and analogies of the law, be upon the party who asserts it.

It is argued that this is unfair to the representatives of a deceased maker of a note, whose mouth is closed by death, but we fail to perceive that the opposite rule would be any less so to the other party, whose mouth, as a witness, is also closed in such case.

Judgment of the circuit court reversed, and that of the common fleas affirmed.  