Teske v. Baumgart
| Citation | 156 N.W. 1044,99 Neb. 479 |
| Decision Date | 04 March 1916 |
| Docket Number | 18573 |
| Parties | GUS TESKE, APPELLANT, v. CARL BAUMGART, APPELLEE |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Platte county: GEORGE H. THOMAS JUDGE. Reversed.
REVERSED.
A. M Post, for appellant.
Reeder & Lightner and R. P. Drake, contra.
Action on a promissory note. Judgment for defendant. Plaintiff appeals.
The first three assignments of error may be considered together. Under these assignments it is contended that the court erred in giving instructions 3 and 5 on its own motion, thereby imposing upon plaintiff the burden of proof as to a claimed alteration of the note in suit.
The original note for $ 1,620 was introduced in evidence and is before us. It bears no evidence whatever upon its face of any alteration either before or after its execution. The petition is in the usual form. The answer is a general denial, followed by lengthy allegations of affirmative matters pleaded as set-off. No further attention need be paid to this branch of the case, as judgment went against the defendant on his set-off, and he has not appealed.
On the trial plaintiff called defendant to the witness stand for the purpose of proving the execution of the note. During the examination defendant made the following admission in the record: "The defendant admits that the signature attached to exhibit 1 is his genuine signature, but does not admit the remainder of the instrument." Plaintiff had possession of the note and produced it at the trial. This was prima facie evidence of delivery and ownership. Gandy v. Estate of Bissell, 72 Neb. 356, 100 N.W. 803. This, together with the admission of the execution of the note, made a complete case for plaintiff in chief, and he rested. It is now contended that the general denial in the answer cast upon plaintiff the burden of proving that the note in suit is the identical note, in form, date and amount, that was signed by the defendant. If this contention is sound, defendant was entitled to a directed verdict when plaintiff rested. No such motion was made, but, on the contrary, defendant proceeded to develop his defenses, the principal of which was that the note in suit was not given on the day of its date, nor until the 30th day of October following, at which time, he testified, he had a settlement with plaintiff, at which the balance due plaintiff was ascertained to be $ 620; that he looked at the figures on the note when he signed it, and the figures were "six and two and naught, and the two little naughts;" that he was unable to read the written portion of the note at that time, as he cannot read English. He also testified that this was done in plaintiff's house, and that no one was present at the time. In this he is directly contradicted by plaintiff and his wife, who both testify that they were present when the note in suit was signed. It will be seen, therefore, that defendant recognized the fact that plaintiff had made out a case, and that the burden was upon him to prove that the note, which he had executed and delivered, and which was regular upon its face, had been materially altered after its execution and delivery. There are cases to be found which hold that this defense cannot be shown under a general denial; but the law in this state is the other way. In Gandy v. Estate of Bissell, supra, we held that a fraudulent alteration of a note might be shown under the general issue. The fact that such a defense may be shown under the general issue does not, however, change the rule that in making such defense, where the note is regular upon its face, the burden is upon the defendant.
This is the rule announced in McClintock v. State Bank, 52 Neb. 130, 71 N.W. 978, Colby v. Foxworthy, 80 Neb 239, 114 N.W. 174, Anderson v. Chicago & N. W. R. Co., 88 Neb. 430, 129 N.W. 1008, and Musser v. Musser, 92 Neb. 387, 138 N.W. 599. This rule has never been departed from in this state, except in Ohio Nat. Bank v. Gill Bros., 85 Neb. 718, 124 N.W. 152, which is strongly relied upon by...
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