Hendrix v. Gillett

• Decision Date: 14 January 1895
• Parties: HENDRIX et al. v. GILLETT et al. [1]
• Court: Colorado Court of Appeals

39 P. 896

6 Colo.App. 127

HENDRIX et al. v. GILLETT et al. ^[1]

Court of Appeals of Colorado

January 14, 1895

Appeal from district court, Phillips county.

Action by Gillett Bros. against Hendrix Bros. From a judgment for plaintiffs, defendants appeal. Affirmed.

W.D Kelsey, for appellants.

P.J Dempster, for appellees.

THOMSON, J.

This is a suit upon a promissory note purporting to have been made by the appellants to M.N. Spahr, and by him indorsed to the appellees. The only defense is a denial of the execution of the note. The appellants admitted the genuineness of their signatures to the paper, but claimed that the note was given to A.A. Spahr, and that, after its execution and delivery, it was altered by changing the initials of the payee from A.A to M.N., thus substituting for the person to whom the note was made payable another and different person. The alteration as charged was not made by erasing the original initials and substituting the others, but by adding to the first A the marks or lines necessary to make it an M, and in the same manner converting the second A into an N. The transaction in which the note was given was had with A.A. Spahr. The positive testimony of each of the appellants to the change alleged was met by the equally positive counter testimony of A.A. Spahr that the note had never been altered, but was written by himself, payable to M.N. Spahr, exactly as it then appeared. R.E. Webster and George E. Clark, bankers of several years' experience, testified that in the course of their business it was necessary for them frequently to inspect notes, checks, drafts, and other like instruments and to examine signatures. E.N. McPherrin, county treasurer and formerly a banker, testified that the business of his office required the examination of writings and signatures. All these witnesses, testifying from their familiarity with writings and instruments of various kinds, stated that in their opinion no alteration had been made in the note. Objection is made that these witnesses did not show themselves qualified as experts to testify concerning the integrity of the note. There was no question which required familiarity with any particular handwriting. It was sought only to ascertain whether two capital A's had been converted, one into a capital M, and the other into a capital N. To accomplish the change the cross lines in the A's must have been erased, and other necessary lines...