2d ed. § 2488, that as to who has the burden of proof "depends ultimately on broad considerations of policy." This, no doubt, is true, and applies equally to the proposition, as included in the former, as to what is and what is not an affirmative defense.

In the case at bar the defendant claims that the note in question was altered by raising the amount thereof from $150 to $450. If that is true, it is fraud and forgery, and in this case would directly involve the owner. If it was altered, it was done by him, or by someone with his knowledge and connivance. The charge is grave, and, though this is not a criminal case, a finding to that effect would stamp the owner as a forger and as an outlaw in his community, unworthy of the confidence of his fellow men. Is it right that this fact should not affect the situation and should not be considered by courts? It is said in some cases where there was an alteration on the face of the instrument, that there is no presumption either one way or the other. See Wigmore, Ev. supra, § 2525; 2 C. J. 1276; note in 39 L.R.A. (N.S.) 112. But this is not such a case. Here the presumption of innocence, that men act in good faith and not unlawfully, should operate in favor of plaintiff. Chamberlayne, Ev. supra, § 1219. And while it is said that the existence of a presumption of law does not affect the burden of proof (Wigmore, Ev. supra, § 2487c; Chamberlayne, Ev. supra, § 1017; 22 C. J. 79), which is no doubt true, and could as such but create a prima facie case for plaintiff shifting the burden of evidence, there is no doubt that the facts of common experience, which is the basis of the presumption, have influenced some of the courts in holding the claim of alteration of an instrument to be an affirmative defense. See, e. g., Maldaner v. Smith, supra, holding that the presumption in such case must be rebutted by clear and satisfactory evidence, which, in effect at

-effect of presumption of law.

least, is the same as saying that the claim of alteration is affirmative in its nature, or, what is nearly the equivalent thereof, that the burden of proof thereof is on him who asserts it.

strument.

Transactions in bills and notes are numberless. Thousands of notes are made and taken daily. Forgeries and fraud therein happen but seldom; they are the exception in innumerable cases; severe penalties are provided for those guilty thereof. When under these circumstances we put in the scale the logic of the position, making such cíaim a negation of plaintiff's claim, and the logic making it an affirmative defense, and find that the scales nearly balance, public policy and a natural sense of justice Pleadingstep in, tipping the alteration of inscale in favor of the latter. A defense of fraud is, at least under the system of Code pleading, almost universally regarded as new matter, as affirmative in its nature. 27 C. J. 28, 44; 1 Enc. Pl. & Pr. 844; Bigelow, Fr. 123, 125; Beatty v. Fishel, 100 Mass. 448; Baldwin v. Parker, 99 Mass. 79, 86, 96 Am. Dec. 697; Briggs v. Humphrey, 5 Allen, 314; Holmes Bros. v. McCall, 114 Miss. 57, 74 So. 786; Commercial State Bank v. Folkerts, 200 Ill. App. 385; McGinnis v. McCormick, 28 Ga. App. 144, 110 S. E. 341; Portuguese American Bank v. Schultz, 49 Cal. App. 508, 193 Pac. 806; J. M. Robinson Norton & Co. v. Stalcup, 58 Ind. App. 370, 106 N. E. 395; Harbison v. Hammons, 113 Ark. 120, 167 S. W. 849.

Where fraud enters into the making of a contract, there is lacking one of its essential elements for its validity. While a contract of that kind is voidable only, still the issue of fraud involves the question whether it ever was obligatory. Baldwin v. Parker, 99 Mass. 79, 86, 96 Am. Dec. 697. A plea of fraud, therefore, and evidence sustaining it, may, in strictness, well be said to merely negative the existence of the contract, if sued on. Such claim, in strict logic, might well be said not

(Wyo.

as

we

to be affirmative. But, as stated, courts have treated it as affirmative. It has been suggested (Chamberlayne, Ev. supra, § 947, note 2, mentioning similar pleas), that this has arisen out of the confusion in which the term "burden of proof" has been used. That may have been a contributing cause, but we think that the real reason, at least in cases of fraud, is deeper and is grounded in the reluctance of courts to treat cases involving these facts in the same light as other cases, and in the refusal to pass over lightly facts charging men with acts of commission often equivalent to crimes. An alteration of an instrument, claimed in the case at bar, would be a fraud of the most vicious sort; and we think that the interests of the community would be most advanced, greater stability and security given to our commercial interests, and justice be attained in the greater number of cases, by not making an exception to the general rule when fraud is involved; but that should hold, as we do, that, in a case like that at bar at least, the defense of an alteration of an instrument is a true affirmative defense which must be proved by the party setting it up. In the case before us the plaintiff admitted on the trial that he signed the note in question. And while pleadings ordinarily determine upon whom rests the burden of proof, they cannot be used to escape the operation of the rule that an affirmative defense must be proved by the defendant. The situation here, therefore, should be treated the same as though the defendant had made the admission above mentioned in the pleadings, but had set up the plea of alteration in avoidance. Cowen Co. v. Houck Mfg. Co. 161 C. C. A. 293, 249 Fed. 285. See also 8 C. J. 924; Stephens v. Fire Asso. of Phila. 139 Mo. App. 369, 123 S. W. 63; New South Rubber Co. v. Muse, 27 Ga. App. 549, 109 S. E. 296; Standard Paint & Lead Works v. Powell, 27 Ga. App. 691, 109 S.

Evidencealteration of instrument.

216 Pac. 691.)

E. 513. The instruction, therefore, given in the case

struction

fense-absence

at bar, putting the Appeal-inburden of proof on affirmative dethe single issue of of error. alteration on the defendant, was not error.

2. The defendant contends that, even though the burden of proof of showing the alteration was on defendant, the court erred in requiring clear and convincing proof. It is true that a number of cases say that the burden must be met by a preponderance of the evidence. 2 C. J. 1288. None of the cases that we have found directly involve the point now under consideration, except Lewis v. Garretson, 56 Iowa, 278, 9 N. W. 214, which, following an earlier civil case not involving the question of fraud, held as contended for by defendant. On the other hand, on page 1288 of 2 C. J., the rule used by the court in the case at bar is stated, without, however, distinguishing it from the rule stated on the previous page. In Kahn v. Traders Ins. Co. 4 Wyo. 419, 476, 62 Am. St. Rep. 47, 34 Pac. 1077, this court said: "A man who alleges fraud must clearly and distinctly prove the fraud he alleges, and the proof must be clear and sufficient to satisfy the mind and conscience of the existence of the fraud." To the same effect is Wallace v. Skinner, 15 Wyo. 233, 255, 88 Pac. 221.

In the case at bar the presumption of innocence exists in favor of the owner of the note. To create a preponderance of the evidence, the latter must be sufficient to overcome the opposing presumption as well as ficiency of-althe opposing evi- teration of indence. And as said

Evidence-suf

strument.

by Jones on Evidence, § 195: "Presumptions, like probabilities, are of different degrees of strength. To overcome a strong presumption requires more evidence than to overcome a weak one. To fasten upon a man a very heinous or repulsive act requires stronger proof than to fasten upon him an indifferent act.

Hence it can never be improp

er to call the attention of the jury to the character of the issue, and to remind them that more evidence should be required to establish grave charges than to establish trifling or indifferent ones."

To preponderate does not necessarily mean that the one side shall be overbalanced just a little; the overbalancing may be considerable. Hence an instruction requiring clear and convincing proof is simply stating that the preponderance must be definite, clear, and convincing. The great weight of authority justifies this qualification in cases of fraud. We recently held that to establish that an absolute conveyance, unaccompanied by any written stipulation for reconveyance, was intended to operate as a mortgage, the evidence of that intention must be clear, unequivocal, and convincing. McFadden v. French, 29 Wyo. 401, 213 Pac. 760. The reason for the rule lies in the fact that to claim as an absolute conveyance what in fact is a mortgage is a fraud upon the grantor in the instrument. We can see no good reason why the rule should not be applied in a case in which the payee of a note is accused of forgery. 2 C. J. 1288; 2 Jones, Ev. § 195; Wigmore, Ev. § 1298; National City Bank v. Shelton Electric Co. 96 Wash. 74, 164 Pac. 933.

3. Counsel further appeal to the rule that, whenever the instrument bears any suspicious evidence of alteration, then the burden is on the party offering the instrument, and no burden of proof rests upon defendant. Starting out with this assumption, and we need not decide whether it is correct or not, they ingeniously argue that whether any such suspicious evidence of alteration exists is a question for the jury, and that hence the court should have instructed the jury that if, in their opinion, the note on its face contained anything tending to show an alteration, then the burden of proof was on plaintiff, and not on defendant. The lower court, upon inspecting the note, probably found no suspicious evidence of al

court frequently passes on the question whether there is any evidence to support a certain contention or issue. It would make no difference whether the proof produced is oral or documentary. Here the contention is that the document contains signs of alteration, and, clearly, the court had a right to say whether there was sufficient evidence to submit that contention to the jury, just the same as to determine a like contention on any other point. Counsel simply attempt to create to the general rule an exception which we do not think is warranted, and no authority in support thereof has been cited. It has frequently been held, on the contrary, that the preliminary question whether any suspicious evidences of alteration appear on the face of the instrument is one for the court. Ofenstein v. Bryan, 20 App. D. C. 1, 22; Holloday-Klotz Land & Lumber Co. v. T. J. Moss Tie Co. 87 Mo. App. 167, 174; Wicker v. Pope, 46 S. C. L. (12 Rich.) 387, 75 Am. Dec. 732; Stillwell v. Patton, 108 Mo. 352, 18 S. W. 1075; Paramore v. Lindsey, 63 Mo. 63; Hagan v. Merchants' & B. Ins. Co. 81 Iowa, 321, 25 Am. St. Rep. 493, 46 N. W. 1114; 2 C. J. 1279; 2 Am. & Eng. Enc. Law, 273. It may be that, if the preliminary question whether there has been an alteration is doubtful, it should be left to the jury. See 1 R. C. L. 970. But that question does not arise upon the facts in this case, and we need not therefore decide it.

4. The note in question was given in part payment of a Grant car. During the transaction leading up to the purchase of the car, the defendant attempted to have the Gifford Motor Company accept as part

that from this testimony, together with other testimony in the record tending to show the authority of Mrs. Ford to write the letter, the jury had the right to draw the inference that the letter was in fact the letter of the defendant, and it was therefore properly admitted.

We

As indicated before, when George Day discovered that the Metz car was worthless, he returned it to the Gifford Motor Company, and the company in turn wrote the defendant of that fact, asking him what he wanted done with the car. The witness Gifford was permitted to testify to the contents of the letter, though no notice to produce it had been served. We might here mention the fact that it appears to be held by a number of authorities that, where the document relates not to the main issue, but to some collateral circumstances, notice to produce the writing, traced into the hands of an opposing party, is not prerequisite to the introduction of parol evidence. 22 C. J. 1060. prefer not to decide that point of law. We think the evidence sufficiently shows the loss of the letter, so as to permit the giving of the above-mentioned testimony under the rule heretofore stated. It is objected, also, that the letter would be simply self-serving and not admissible for that reason. It appears that it was never answered. The defendant stated that the reason for that was that he considered that he had no longer any interest in the Metz car. We think the contents of the letter, together with the proof that it was not answered, were, under the circumstances, admissible. There is testimony tending to show that up to that time the Gifford Motor Company had no reason to expect that the defendant would disclaim any interest in the notes. He had been silent in the meantime, excepting only the letter

-contents of letter.

of July, 1917, above mentioned. The jury, we think, had a right to pass upon the question as to whether or not the letter should have been answered in the ordinary course of business by one claiming no further interest in the car, and whether the silence of the defendant, under the circumstances, did or did not indicate that he was in fact the owner of the car. 22 C. J. 322, 326, 327.

The witness Gifford was permitted on re-examination to testify to statements made to Day while selling him the Metz car, to the effect that the car was that of the defendant, who had placed the price of $300 thereon. These statements are excepted to as self-serving. The witness had been asked at length on cross-examination as to statements made by him to Day. There is no reason, therefore, why plaintiff should have been barred from in