Von Eherenkrook v. Webber

• Decision Date: 17 April 1894
• Citation: 58 N.W. 665,100 Mich. 314
• Court: Michigan Supreme Court
• Parties: VON EHERENKROOK v. WEBBER et al.

58 N.W. 665

100 Mich. 314

VON EHERENKROOK v. WEBBER et al.

Supreme Court of Michigan

April 17, 1894

Error to circuit court, Montcalm county; Vernon H. Smith, Judge.

Action by Cora B. Von Eherenkrook against Oscar Webber and Clarence W. Chapin to recover the amount of a certificate of deposit alleged to have been placed by plaintiff in defendants' bank, to her credit. From a judgment for plaintiff defendants appeal. Reversed.

Ellis, Nichols & Miller, for appellants.

Lyman C. Moore and Clute & Clute, for appellee.

McGRATH C.J.

Defendants are bankers. Plaintiff, in October, 1890, borrowed, upon a mortgage of her individual property and deposited with defendants, the sum of $475.25, taking therefor a certificate of deposit. Her husband had been a partner of the firm of E Curtis & Co., but that firm had dissolved in August, 1890. Curtis & Co. were indebted to defendants upon certain notes and defendants held a deed of lands as collateral. Plaintiff had recently entered into partnership with her husband's brother, under the firm name of George B. Eherenkrook & Co.; and her claim is that the said certificate of deposit was indorsed in blank by her, and delivered to defendant Clarence W. Chapin, to be placed to her credit, to be checked out by her for the use of said firm, but that afterwards defendants refused to honor checks drawn against it. Plaintiff brought assumpsit on the common counts, and had judgment, and defendants appeal.

The certificate was delivered to Chapin in the highway near plaintiff's residence, and was indorsed in pencil. Defendants insist that, before said indorsement, Chapin had written upon the back of the certificate, in pencil, the words, "For E. Curtis & Co., account," and that plaintiff made the indorsement under such writing. The plaintiff put the certificate in evidence, at the same time insisting that the words, "For E. Curtis & Co., account," were not upon the certificate when it passed from her hands. Defendants insist that the burden was upon plaintiff to show that the words, "For E. Curtis & Co., account," were not upon the back of the certificate when the same was indorsed by plaintiff, and complain of the following instruction given to the jury: "Now, the burden of proof, in the outset of every case, is upon the plaintiff. The burden would be upon her to show that she left this money at the bank, and, in this case, that she had asked for it, and the payment had been refused. That she had done. Stopping right there, she makes a case, and is entitled to recover. Now, the defendants come into the case, and say, 'We have applied this money the way you have directed us to. We have paid this money to E. Curtis & Co. You consented or directed that we should do so.' Now, as to that question, the burden is upon defendants. They have the burden of proof to show that that was done, in order to release them from their liability." Plaintiff relied upon the certificate to show the original deposit, the obligation issued to her, and its surrender. Defendants relied upon the indorsement, and the words preceding the same, to corroborate their claim that they had been instructed to place the amount to the credit of E. Curtis & Co. Plaintiff insisted that the indorsement was in blank, and that the words, "For E. Curtis & Co., account," were not upon the paper when she signed it. Plaintiff's denial raised an issue respecting a writing which defendants relied upon; and they had the affirmative of that issue, the burden being upon them to satisfy the jury upon that question.

It may be urged that the introduction of the certificate with the words in question, and the indorsement upon it, made a prima facie case for defendants. The same may be true in any suit upon an instrument which shows an erasure, or words recast or an interlineation, yet, if the party sought to be charged has raised an issue respecting such erasure and interlineation, the burden is thrown upon the party relying upon the instrument. Plaintiff's suit is not planted upon the certificate. She insists that she did not give such a writing as the defendants rely upon; that her indorsement upon the certificate was for another purpose; that such indorsement and the delivery completed the transfer, without the addition of other words; and that, by the interpolation of the words in question, defendants have changed the character of the writing. In Willett v. Shepard, 34 Mich. 106, defendants admitted the signature to the note sued upon, but insisted that in the clause "ten per cent after due, value received," the printed words "after due" had been erased. The court held that the bare fact of the erasure raised no legal presumption that the words had been stricken out after execution, and that until there was opposing evidence the note was properly to be regarded as affording sufficient inferential and presumptive evidence in support of the allegation of plaintiff to constitute a prima facie case in his favor. "When, however," says the court, "the plaintiffs in error went into general evidence to controvert the case of the defendant in error, and prove the alteration fraudulent, the...