Cass Cnty. v. Am. Exch. State Bank of Buffalo

• Decision Date: 12 May 1900
• Parties: CASS COUNTY v. AMERICAN EXCH. STATE BANK OF BUFFALO et al.
• Court: North Dakota Supreme Court

9 N.D. 263

83 N.W. 12

CASS COUNTY

v.AMERICAN EXCH. STATE BANK OF BUFFALO et al.

Supreme Court of North Dakota.

May 12, 1900.

Syllabus by the Court.

In an action upon a bond with a large number of sureties, it appeared on the face of the instrument that one name that had been signed as surety had subsequently been erased, and other names appeared below the erased signature. Held, that the bond was primarily admissible in evidence, that the legal presumption was that the erasure was innocent and not fraudulent in fact or in law, and that the burden rested upon the other signers to show that their implied contract of contribution had been altered by the erasure.

Appeal from district court, Cass county; Charles A. Pollock, Judge.

Action by the county of Cass against the American Exchange State Bank of Buffalo and others. Judgment for defendants, and plaintiff appeals. Reversed.

Fred B. Morrill and Edward Engerud, for appellant. Newman, Spalding & Stambaugh, for respondents W. W. Merrill, P. Masterson, C. A. Bullamore, and P. T. Peterson. Barnett & Reese, for respondent William Beard. W. J. Clapp, for respondent Neil McPhedron.

BARTHOLOMEW, C. J.

The defendant the American Exchange State Bank of Buffalo, pursuant to the provisions of article 8, c. 26, Pol. Code, became a depository of county funds for the plaintiff county. For the proper security of said deposits, said defendant executed its bond to said county, with all the other defendants as sureties thereon. The bank failed to pay over the funds deposited as by said bond it was required to do, and this action is on the bond, to recover the balance unaccounted for. The bank made default, as did the defendants Bayley and Moug. The other defendants answered, setting up, in effect, that the bond sued upon was not their contract, by reason of certain erasures. Plaintiff at the trial offered the bond in evidence. It was objected to by reason of the erasures. The objection was sustained. Plaintiff then proved that when the bond was delivered it was in the same condition as when offered in evidence, and again offered the bond. The same objections were repeated, and the bond was again rejected. The basis of plaintiff's action being thus excluded, the court, on motion of the defendants, directed a verdict in their favor.

The only assignment of error that we shall discuss is that relating to the ruling in excluding the bond. The original bond was sent up with the record, and by stipulation we are requested to examine it. We find that the bond consists of a single page, and was prepared on a typewriter. A space was left for the insertion of the names of the sureties, and these were inserted with a pen, doubtless after the bond was signed. The obligee in the bond has been changed from the board of county commissioners of Cass county to the county itself. It is conceded that defendants cannot escape liability by reason of these facts. At the bottom of the sheet upon which the bond is found were prepared eight lines for the names of the sureties. It was evidently one of those cases where the principal went in search of sureties, without knowing who they would be. But we find the lines filled in the following order: S. E. Bayley, Neil McPhedron, John Moug, W. W. Merrill. On the fifth line was originally written the name of W. L. Jones, but this name has been erased by a red-ink mark drawn through it. On the sixth line and following are the names of C. A. Bullamore, Reuben Beard, and P. T. Peterson. These names filled all the lines, and the last line is very near the bottom of the sheet, but crowded in below it is the name of the defendant James A. Winsloe. There is no room for anything below Winsloe's name. But, returning back to the fifth line, we find in the space above the erased name of W. L. Jones the name of the defendant P. Masterson. This defendant testifies that he was called into the office of the bank about 7 o'clock in the evening, and signed his name to the bond; that the red-ink erasure over the name of W. L. Jones appeared at that time. From the appearance of the bond, we think it a fair inference that the defendant was the last signer on the bond, as it is not reasonable to suppose that he would have crowded his signature in where we find it, had there been room below. It is the erasure of the signature of W. L. Jones that is relied upon as warranting the rejection of the bond. As to the time of the erasure the record is silent, further than the fact that it was erased before Masterson signed. There is nothing to show whether the erasure was made before or after the names below the erasure were signed, nor is there any evidence to show whether or not any of the sureties aside from Masterson ever consented to, or had any knowledge of, such erasure.

Under these facts, what is the rule of law as to the admission of the bond in evidence? In the case of Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473, this court, without citing the authorities, declared that “the legal presumption, prima facie, is that alterations appearing upon written instruments were made before delivery.” We regard that as the better rule at the present day. Every phase of decision on the point can be found in the books. A review would be profitless. We content ourselves with quoting from Mitchell, J., in Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 4 L. R. A. 196: “The question of presumption and burden of proof, where interlineations or erasures appear on the face of an instrument, is one upon which there is a wilderness of authorities and much conflict of opinion. Any attempt to cite or consider the innumerable cases on this question would be both impracticable and useless. The rule adopted by some authorities is that the presumption, in the absence of evidence to the contrary, is that the alteration was made before execution, and therefore that no explanation is required in...