Rochford v. Albaugh

• Decision Date: 08 May 1903
• Citation: 16 S.D. 628,94 N.W. 701
• Parties: G. E. ROCHFORD, Plaintiff and appellant, v. H. E. ALBAUGH, Defendant and respondent.
• Court: South Dakota Supreme Court

16 S.D. 628

94 N.W. 701

G. E. ROCHFORD, Plaintiff and appellant,

v.

H. E. ALBAUGH, Defendant and respondent. South Dakota Supreme Court Appeal from circuit court, McCook County, SD Hon. Joseph W. Jones, Judge Affirmed Joe Kirby Attorneys for appellant. E. H. Wilson Attorneys for respondent. Opinion filed May 8, 1903

CORSON, J.

This is an appeal from an order granting a new trial. The action was brought upon a promissory note executed by the defendant. The defendant, in his answer, alleged as a defense that the note had been altered by writing the figure “6” before the figure “2,” making the same read “$62.70.” and also writing the word “sixty” before the words “Two and seventy one hundredths dollars,” without the consent or acquiescence of the defendant. The trial resulted in a verdict in favor of the plaintiff, and the defendant moved for a new trial, which was granted; the order granting the same being as follows:

“It appearing to the court that the evidence is not sufficient to sustain the verdict, because the evidence of the defendant shows that said note in suit was altered, after the same was delivered, without defendant’s consent, and there was no evidence contradictory thereto introduced by the plaintiff, which justified the jury in not finding that the said note was so altered: Now, therefore, for the reasons given aforesaid, it is hereby ordered that the verdict of the jury, and judgment thereon, be, and the same is hereby, vacated and set aside, and the defendant is hereby granted a new trial therein.”

It is shown by the record that the plaintiff introduced the note in evidence, upon which there was no appearance of any alteration. The defendant thereupon, being sworn as a witness in his own behalf, testified that when he executed the note it was a note for $2.70 and that it had been altered without his consent, so as to read $62.70. This was the only direct evidence upon the subject. There were certain letters written by the Kirby Mercantile Company to the defendant, offered in evidence, and also an application for an insurance policy, but they tended only in a slight degree to sustain the plaintiff’s case.

It is contended by the appellant that, there being no alteration apparent upon the face of the note, it was presumptively in the same condition as when signed by the defendant, and that the burden of proof was upon the defendant, to overcome this presumption, and whether he had done so or not was...