J.I. Case Threshing MacH. Co. v. Peterson

• Decision Date: 08 July 1893
• Citation: 33 P. 470,51 Kan. 713
• Parties: THE J. I. CASE THRESHING MACHINE COMPANY v. JOHN PETERSON et al
• Court: Kansas Supreme Court

33 P. 470

51 Kan. 713

THE J. I. CASE THRESHING MACHINE COMPANY v. JOHN PETERSON et al

Supreme Court of Kansas

July 8, 1893

Error from Osage District Court.

ACTION by the Threshing Machine Company against Peterson and another, to recover on a promissory note. At the June term 1889, there was rendered herein a judgment, on account of which plaintiff comes to this court. The facts appear in the opinion.

Judgment affirmed.

L. T Wilson, for plaintiff in error:

1. The court erred in permitting the defendants to prove an alteration of the note, under the verified general denial filed as their answer. See 1 Greenl. Ev., § 564, note 3; Savings Association v. Barber, 35 Kan. 493; Steph. Pl., p 134.

2. The court erred in refusing to instruct the jury that the burden of proof was on the defendants; inasmuch as the note bore no evidence upon its face of having been altered, and there were no suspicious circumstances arising upon the face of the note as to its alteration, the burden was upon the defendants to establish such alteration. See 1 Greenl. Ev., § 564; 1 Best, Ev., § 229; Neil v. Case, 25 Kan. 516; Meikel v. Savings Institution, 36 Ind. 335. See, also, National Bank v. Franklin, 20 Kan. 268, 269; Eckert v. Pickel, 13 S.W. 708; Craig v. Fowler, 13 id. 116; Bayley v. Tabor, 6 Mass. 451; 1 Best, Ev., § 229; Insurance Co. v. Brimmin, 12 N.E. 315; 37 Am. Rep. 260.

P. E. Gregory, and Bradford & Huron, for defendants in error:

The verified answer of the defendants puts in issue everything except that the plaintiff is a corporation. The burden is on the plaintiff to show that a note for $ 300, bearing 8 per cent. interest, was executed by the defendants.

The sworn answer of the defendants takes away that prima facie character of the paper sued on, destroys the presumption of innocence, and places the paper in the condition of a suspected paper. See Walters v. Short, 5 Gilm. 520.

If a note appears on its face or by the sworn answer of the defendants to have been changed or altered, the burden is on him who seeks to recover thereon to explain the alterations. Wilde v. Armsby, 6 Cush. 314, and cases therein cited. See, also, Hayner v. Eberhardt, 37 Kan. 308.

That the note was altered is true, and the jury so found when they found a general verdict for the defendants. See 2 Dan. Neg. Inst., § § 1373, 1375, 1385. See, also, Coburn v. Webb, 56 Ind. 96; Hart v. Clouser, 30 id. 210; Schenwind v. Hackett, 54 id. 248; Moon v. Hutchinson, 69 Mo. 429.

JOHNSTON, J. All the Justices concurring.

OPINION

JOHNSTON, J.:

On January 28, 1888, John and Peter Peterson jointly executed a promissory note to the J. I. Case Threshing Machine Company for $ 300. The note was payable January 1, 1889, and upon the face of the note upon which action is brought it appeared to bear interest at the rate of 8 per cent. per annum from date. The answer of the Petersons was a general denial, which was verified. Upon the issue thus formed, the defendants were permitted to introduce testimony tending to show that the note as executed contained no provision for the payment of interest, but had been subsequently altered by the insertion of the figure "8" in the interest blank. The plaintiff contends that the court erred in permitting proof of an alteration of the note under the verified general denial, and insists that such denial only placed in issue the genuineness of the defendants' signature to the note, and that, to avail themselves of the defense of an alteration of the note, it should have been specifically pleaded, especially as the note bore no evidence of alteration or change upon its face. Under our code, the practice of verifying a general denial is permissible, and an answer so verified sufficiently puts in issue allegations of the due execution of written instruments, the indorsements thereon, the existence of a partnership, etc. (Civil Code, § 108; Savings Ass'n v. Barber, 35 Kan. 488, 11 P. 330; Hayner v. Eberhardt, 37 id. 308.)

It was averred in the plaintiff's petition that the defendants executed a promissory note for a stated amount, payable at a specified time, and bearing a given rate of interest. Under the answer, it devolved upon plaintiff to prove the execution of such a note as it had set out in its petition. This could not be done by proof of the execution of a note for $ 3,000 instead of for $ 300, nor of a note due at a time other than the one specified, nor by producing a note for a different rate of interest than was alleged. The verified denial being sufficient, it not only placed upon plaintiff the burden of proving the execution of...