Wight v. Citizens' Bank

• Citation: 124 P. 478,17 N.M. 71,1912 -NMSC- 008
• Parties: WIGHT v. CITIZENS' BANK.
• Decision Date: 23 March 1912
• Court: New Mexico Supreme Court

124 P. 478

17 N.M. 71, 1912 -NMSC- 008

WIGHT v. CITIZENS' BANK.

Supreme Court of New Mexico

March 23, 1912

Syllabus by the Court.

A denial by the alleged maker of a promissory note, under oath of the signature thereto, coupled with an allegation that the signature is a forgery, places in issue the genuineness and due execution of the same under subsection 308, c. 107, of the Laws of New Mexico of 1907, and does not constitute an affirmative defense, casting upon the defendant the burden to establish by a preponderance of the evidence that he did not make and execute the note in question.

Appeal from District Court, Union County; before Justice Roberts.

Action by the Citizens' Bank against Mark Wight. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

H. E Lutz and Julius C. Gunter, both of Denver, Colo., and Oliver P. Easterwood, of Clayton, for appellant.

O. T Toombs, of Clayton, for appellee.

ABBOTT District Judge (sitting as Associate Justice).

This is an action for the collection of a promissory note. The complaint of the Citizens' Bank, plaintiff below, sets forth a copy of the promissory note. The answer of Mark Wight defendant below, alleged maker of the note, is under oath and contains the following allegation: "Further answering herein, defendant states the fact to be that the purported note of this defenant as herein sued upon, was at no time signed by this defendant that the same is a forgery; and that if the same bears the signature of this defendant that such signature is a forgery, and was not made by the defendant, and was not made by any authorized agent, or any other person with the knowledge and consent of this defendant." Upon the issue thus presented, the cause was tried by a jury, and the court gave the following instructions, to wit: "Instruction No. 3. If you find the allegations of plaintiff's complaint to have been proven true by a preponderance of the evidence, you will then pass to a consideration of the allegations contained in the defendant's answer; that is, whether or not the defendant made and executed this note. Instruction No. 4. The burden is upon the plaintiff to establish by a preponderance of the evidence all the material allegations of this complaint. The defendant having set up an affirmative defense, the burden is upon the defendant to establish by a preponderance of the evidence that he did not make and execute the note in...