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2d ed. § 2488, that as to who has least, is the same as saying that the the burden of proof “depends ulti- claim of alteration is affirmative in mately on broad considerations of its nature, or, what is nearly the policy.” This, no doubt, is true, and equivalent thereof, that the burden applies equally to the proposition, of proof thereof is on him who asas included in the former, as to serts it. what is and what is not an affirma- Transactions in bills and notes are tive defense.

numberless. Thousands of notes In the case at bar the defendant are made and taken daily. Forgerclaims that the note in question was ies and fraud therein happen but altered by raising the amount there- seldom; they are the exception in of from $150 to $450. If that is innumerable cases; severe penalties true, it is fraud and forgery, and in are provided for those guilty therethis case would directly involve the of. When under these circumstanowner. If it was altered, it was ces we put in the scale the logic of done by him, or by someone with the position, making such cíaim a his knowledge and connivance. The negation of plaintiff's claim, and the charge is grave, and, though this is logic making it an affirmative denot a criminal case, a finding to that fense, and find that the scales neareffect would stamp the owner as a ly balance, public policy and a natforger and as an outlaw in his com- ural sense of justice

Pleadingmunity, unworthy of the confidence step in, tipping the alteration of inof his fellow men. Is it right that scale in favor of the this fact should not affect the situ- latter. A defense of fraud is, at ation and should not be considered least under the system of Code by courts? It is said in some cases pleading, almost universally regardwhere there was an alteration on the ed as new matter, as affirmative in face of the instrument, that there its nature. 27 C. J. 28, 44; 1 Enc. is no presumption either one way Pl. & Pr. 844; Bigelow, Fr. 123, 125; or the other. See Wigmore, Ev. su- Beatty v. Fishel, 100 Mass. 448; pra, § 2525; 2 C. J. 1276; note in 39 Baldwin v. Parker, 99 Mass. 79, 86, L.R.A.(N.S.) 112. But this is not 96 Am. Dec. 697; Briggs v. Humsuch a case.

Here the presumption phrey, 5 Allen, 314; Holmes Bros. v. of innocence, that men act in good McCall, 114 Miss. 57, 74 So. 786; faith and not unlawfully, should Commercial State Bank v. Folkerts, operate in favor of plaintiff. Cham- 200 Ill. App. 385; McGinnis v. Moberlayne, Ev. supra, § 1219. And Cormick, 28 Ga. App. 144, 110 S. E. while it is said that the existence of 341; Portuguese American Bank v.

presumption of Schultz, 49 Cal. App. 508, 193 Pac. -effect of presumption of law does not affect 806; J. M. Robinson Norton & Co. v.

the burden of proof Stalcup, 58 Ind. App. 370, 106 N. E. (Wigmore, Ev. supra,

supra, $ 2487c; 395; Harbison v. Hammons, 113 Chamberlayne, Ev. supra, 1017; 22 Ark. 120, 167 S. W. 849. C. J. 79), which is no doubt true, and Where fraud enters into the makcould as such but create a prima ing of a contract, there is lacking facie case for plaintiff shifting the one of its essential elements for its burden of evidence, there is no doubt validity. While a contract of that that the facts of common experi- kind is voidable only, still the issue ence, which is the basis of the pre- of fraud involves the question sumption, have influenced some of whether it ever was obligatory. the courts in holding the claim of Baldwin v. Parker, 99 Mass. 79, 86, alteration of an instrument to be an 96 Am. Dec. 697. A plea of fraud, affirmative defense. See, e. g., Mal- therefore, and evidence sustaining daner v. Smith, supra, holding that it, may, in strictness, well be said to the presumption in such case must merely negative the existence of the be rebutted by clear and satisfac- contract, if sued on. Such claim, in tory evidence, which, in effect at strict logic, might well be said not


of error.

(- Wyo. 216 Pac. 691.) to be affirmative. But, as stated,

But, as stated, E. 513. The instruction, therefore, courts have treated it as affirmative. given in the case It has been suggested (Chamber- at bar, putting the Appeal-inlayne, Ev. supra, § 947, note 2, men- burden of proof on affirmative detioning similar pleas), that this has the single issue of

fense-absence arisen out of the confusion in which alteration on the dethe term "burden of proof” has been fendant, was not error. used. That may have been a con- 2. The defendant contends that, tributing cause, but we think that even though the burden of proof of the real reason, at least in cases of showing the alteration was on defraud, is deeper and is grounded in fendant, the court erred in requiring the reluctance of courts to treat clear and convincing proof. It is cases involving these facts in the true that a number of cases say that same light as other cases, and in the the burden must be met by a prerefusal to pass over lightly facts ponderance of the evidence.2 C. J. charging men with acts of commis- 1288. None of the cases that we sion often equivalent to crimes. An have found directly involve the point alteration of an instrument, as now under consideration, except claimed in the case at bar, would be Lewis v. Garretson, 56 Iowa, 278, 9 a fraud of the most vicious sort; and N. W. 214, which, following an we think that the interests of the earlier civil case not involving the community would be most advanced, question of fraud, held as contended greater stability and security given for by defendant. On the other to our commercial interests, and hand, on page 1288 of 2 C. J., the justice be attained in the greater rule used by the court in the case number of cases, by not making an

at bar is stated, without, however, exception to the general rule when distinguishing it from the rule statfraud is involved; but that we ed on the previous page. In Kahn should hold, as we do, that, in a case

v. Traders Ins. Co. 4 Wyo. 419, 476, like that at bar at least, the defense

62 Am. St. Rep. 47, 34 Pac. 1077, of an alteration of an instrument is

this court said: “A man who alleges a true affirmative

fraud must clearly and distinctly Evidencealteration of defense which must prove the fraud he alleges, and the instrument.

be proved by the proof must be clear and sufficient to party setting it up. In the case be satisfy the mind and conscience of fore us the plaintiff admitted on the

the existence of the fraud.” To the trial that he signed the note in ques

same effect is Wallace v. Skinner, 15 tion. And while pleadings ordina

Wyo. 233, 255, 88 Pac. 221.

In the case at bar the presumption rily determine upon whom rests the

of innocence exists in favor of the burden of proof, they cannot be used

owner of the note. To create a preto escape the operation of the rule

ponderance of the evidence, the latthat an affirmative defense must be

ter must be sufficient to overcome proved by the defendant. The situa

the opposing pretion here, therefore, should be treat

sumption as well as iciency of-al

Evidence-sufed the same as though the defend

the opposing evi- teration of inant had made the admission above dence. And as said mentioned in the pleadings, but had by Jones on Evidence, ş 195: "Preset up the plea of alteration in avoid- sumptions, like probabilities, are of ance. Cowen Co. v. Houck Mfg. Co. different degrees of strength. To 161 C. C. A. 293, 249 Fed. 285. See overcome a strong presumption realso 8 C. J. 924; Stephens v. Fire As- quires more evidence than to overso. of Phila. 139 Mo. App. 369, 123 come a weak one. To fasten upon S. W. 63; New South Rubber Co. a man a very heinous or repulsive v. Muse, 27 Ga. App. 549, 109 S. E. act requires stronger proof than to 296; Standard Paint & Lead Works fasten upon him an indifferent act. v. Powell, 27 Ga. App. 691, 109 S.

Hence it can never be improp


er to call the attention of the jury teration on its face. The original to the character of the issue, and to note is contained in the record beremind them that more evidence fore us, and we think the lower should be required to establish court's conclusion was right. The grave charges than to establish trif- contention of counsel, that whether ling or indifferent ones.”

such suspicious evidence appeared To preponderate does not neces- therein is always a

Trial-question sarily mean that the one side shall question for

the for jury-alterabe overbalanced just a little; the jury is obviously tion of instruoverbalancing may be considerable. not correct. The Hence an instruction requiring clear court frequently passes on the quesand convincing proof is simply stat- tion whether there is any evidence ing that the preponderance must be to support a certain contention or definite, clear, and convincing. The issue. It would make no difference great weight of authority justifies whether the proof produced is oral this qualification in cases of fraud. or documentary. Here the contenWe recently held that to establish tion is that the document contains that an absolute conveyance, unac

signs of alteration, and, clearly, the companied by any written stipula- court had a right to say whether tion for reconveyance, was intend there was sufficient evidence to subed to operate as a mortgage, the evi- mit that contention to the jury, just dence of that intention must be the same as to determine a like conclear, unequivocal, and convincing. tention on any other point. CounMcFadden v. French, 29 Wyo. 401, sel simply attempt to create to the 213 Pac. 760. The reason for the general rule an exception which we rule lies in the fact that to claim as do not think is warranted, and no an absolute conveyance what in fact authority in support thereof has is a mortgage is a fraud upon the been cited. It has frequently been grantor in the instrument. We can held, on the contrary, that the presee no good reason why the rule liminary question whether any susshould not be applied in a case in picious evidences of alteration apwhich the payee of a note is accused pear on the face of the instrument of forgery. 2 C. J. 1288; 2 Jones, is one for the court. Ofenstein v. Ev. § 195; Wigmore, Ev. § 1298; Na- Bryan, 20 App. D. C. 1, 22; Hollotional City Bank v. Shelton Electric day-Klotz Land & Lumber Co. v. T. Co. 96 Wash. 74, 164 Pac. 933. J. Moss Tie Co. 87 Mo. App. 167,

3. Counsel further appeal to the 174; Wicker v. Pope, 46 S. C. L. (12 rule that, whenever the instrument Rich.) 387, 75 Am. Dec. 732; Stillbears any suspicious evidence of al- well v. Patton, 108 Mo. 352, 18 S. W. teration, then the burden is on the 1075; Paramore v. Lindsey, 63 Mo. party offering the instrument, and 63; Hagan v. Merchants' & B. Ins. no burden of proof rests upon de- Co. 81 Iowa, 321, 25 Am. St. Rep. fendant. Starting out with this as- 493, 46 N. W. 1114; 2 C. J. 1279; 2 sumption, and we need not decide Am. & Eng. Enc. Law, 273. It may whether it is correct or not,—they be that, if the preliminary question ingeniously argue that whether any whether there has been an alterasuch suspicious evidence of altera- tion is doubtful, it should be left to tion exists is a question for the jury, the jury. See 1 R. C. L. 970. But and that hence the court should that question does not arise upon have instructed the jury that if, in the facts in this case, and we need their opinion, the note on its face not therefore decide it. contained anything tending to show 4. The note in question was given an alteration, then the burden in part payment of a Grant car. of proof was on plaintiff, and not During the transaction leading up on defendant. The lower court, up- to the purchase of the car, the deon inspecting the note, probably

the note, probably fendant attempted to have the Giffound no suspicious evidence of al- ford Motor Company accept as part

Evidence-contents of letter



(- Wyo, -, 216 Pac. 691.) of the purchase price, to the extent witness Gifford, manager and main of $300, an old Metz car owned by owner of the Gifford Motor Comhim, and he claims that in fact it pany, in rebuttal, also testified to the was so accepted, thus accounting for contents of the letter, which was in the difference between $450 and direct contradiction of the testi$150 of the note in suit claimed to mony of Mrs. Ford. The testimony have been altered. The Gifford of the former was proper rebuttal Motor Company, on the other hand, testimony, and, after the testimony denied that it accepted it as such given by Mrs. Ford, the defendant part payment, but simply agreed should not now be heard to comto sell it for him, if possible, plain that the confor the sum of $300; that pur- tents of the letter suant to that understanding it sold were testified to by notice to prothe car to one George Day, who, the witness Gifford, however, finding the car absolutely

in the absence of notice to produce. worthless, returned it, of which the Besides, the record, we think, shows defendant was duly notified. It ap- sufficiently the loss of the letter; pears that this sale to Day was hence a notice to produce would made on June 15, 1917. The pur- have been useless. Such loss, when chaser gave in payment six notes of shown, therefore

-necessity of $50 each, made to J. B. Ford and se- obviates the neces- notice to procured by a chattel mortgage on the sity of such notice. car, also taken in the defendant's Jones, Ev. $ 224. name. The Gifford Motor Company A letter was written to the witclaims that it sent these notes and ness Gifford in response to the letthe mortgage, soon after they were ter just mentioned, dated July, 1917, taken, to the defendant by mail. the main portion of which is as folThe plaintiff sought, on cross-ex

lows: amination, to have the defendant

"You will find inclosed notes for testify to the contents of the letter

which I hope you can collect as they accompanying these papers, and ex

come due, as that was the underception is taken to this proceeding standing between us. on the ground that no notice was

"Yours truly, served on the defendant to produce

"J. B. Ford. it. No prejudicial testimony was, however, given by the defendant

You are down there where he against himself on this subject, and

lives and have a better chance for hence we could in no

to collect." Appeal--harmless testimony- event reverse the The notes referred to were the effect.

case on account of notes given by George Day in paysuch cross-examination. Subse- ment of the Metz car. The defendquently the wife of defendant took ant and his wife testified that the the witness stand to testify in his letter was written by the latter behalf, and, after having testified to without any authority from her husthe loss of the letter above men- band. But the court admitted the tioned, testified to its contents, letter in evidence, and this is asclaiming that the letter asked the signed as error. It appears that the defendant to indorse the notes and letter was received in due course of return them. This testimony was mail, and that it is in answer to a elicited in order to show that, while prior letter addressed to the defendthe papers were in the name of the ant and received by him, and it is defendant, they were so taken for held that in such

-presumption convenience only, and that the Gif- case a presumption as to author ford Motor Company, by asking for arises that the lat

of retter. an indorsement and return of the er letter is the letter of the person papers, thereby acknowledged it whose name is signed thereto. 22 self to be the owner thereof. The C. J. 94. In any event, we think

that from this testimony, together of July, 1917, above mentioned. The with other testimony in the record jury, we think, had a right to pass tending to show the authority of upon the question as to whether or Mrs. Ford to write the letter, the not the letter should have been anjury had the right to draw the in- swered in the ordinary course of ference that the letter was in fact business by one claiming no further the letter of the defendant, and it interest in the car, and whether the was therefore properly admitted. silence of the defendant, under the

As indicated before, when George circumstances, did or did not indiDay discovered that the Metz car cate that he was in fact the owner was worthless, he returned it to the of the car. 22 C. J. 322, 326, 327. Gifford Motor Company, and the The witness Gifford was permitcompany in turn wrote the defend- ted on re-examination to testify to ant of that fact, asking him what statements made to Day while sellhe wanted done with the car. The ing him the Metz car, to the effect witness Gifford was permitted to that the car was that of the defendtestify to the contents of the letter, ant, who had placed the price of though no notice to produce it had $300 thereon. These statements been served. We might here men- are excepted to as self-serving. The tion the fact that it appears to be witness had been asked at length on held by a number of authorities cross-examination as to statements that, where the document relates made by him to Day. There is no not to the main issue, but to some reason, therefore, why plaintiff collateral circumstances, notice to should have been barred from inproduce the writing, traced into the quiry as to other

statements made at dence brought

-clarifying evihands of an opposing party, is not prerequisite to the introduction of the same time. The out on cross

examination. parol evidence. 22 C. J. 1060. We answers permitted prefer not to decide that point of to be given simply clarified some law. We think the evidence suffi- evidence given on cross-examinaciently shows the loss of the letter, tion. so as to permit the giving of the Defendant asked for an instrucabove-mentioned testimony under tion that the plaintiff in this case the rule heretofore stated. It is ob- was only the nominal, and the Gifjected, also, that the letter would be ford Motor Company the real, plainsimply self-serving and not admis- tiff. This instruction was refused. sible for that reason. It appears If this was error, which we doubt, that it was never answered. The we fail to see where

in defendant stated that the reason

defendant prejudicial re-

Appeal-nonfor that was that he considered that was prejudiced. It fusal of instruche had no longer any interest in the was the duty of the Metz car. We think the contents of jury to pass upon the merits of the

the letter, together controversy involved, and give judgwith the proof that ment to the party legally and justly

it was not answered, entitled thereto, without favor to or were, under the circumstances, ad- bias for either, and without refermissible. There is testimony tend- ence to his or its name. ing to show that up to that time We find no prejudicial error in the the Gifford Motor Company had no

record. The judgment of the lower reason to expect that the defendant court should accordingly be afwould disclaim any interest in the

firmed; and it is so ordered. notes. He had been silent in the Potter, Ch. J., and Kimball, J., meantime, excepting only the letter concur,


-contents of letter.

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