Willett v. Shepard

• Decision Date: 20 April 1876
• Citation: 34 Mich. 106
• Court: Michigan Supreme Court
• Parties: Gordon A. Willett and another v. Oliver C. Shepard. [*]

34 Mich. 106

Gordon A. Willett and another v. Oliver C. Shepard. ^[*]

Supreme Court of Michigan

April 20, 1876

Heard April 14, 1876

Error to Ionia Circuit.

Judgment reversed, with costs, and a new trial ordered.

Wells & Morse, for plaintiffs in error.

Mitchell & Pratt, for defendant in error.

OPINION

Graves, J.

The defendant in error brought his action to recover of plaintiffs in error the amount of a promissory note.

The declaration was on the common counts, and a copy of the note was appended.

It purported to have been given on ten months' time, and to call for interest from its date at the rate of ten per cent.

The plaintiffs in error pleaded the general issue, and an affidavit denied the execution of the note.

At the trial, on being produced, it appeared to have been drawn by filling up a printed blank, and the printed part called for "ten per cent. interest after due, value received," but the printed words "after due" were seen to have been erased at some time.

The note being offered in evidence, it was admitted that the signature was genuine. And it was conceded that the paper might be given in evidence to the jury, but not as showing that it was executed with the words "after due" struck out. It was accordingly admitted, and the defendant in error rested.

Thereupon the plaintiffs in error went into evidence to prove that the words in question were in when the note was given and had been fraudulently erased since, and the defendant in error gave evidence to the contrary.

In charging the jury the judge told them that the burden of proof was upon the plaintiffs in error upon the point in controversy, and the jury upheld the note; and this ruling presents the only question in the cause.

The form in which the defendant in error chose to assert his cause of action is of no consequence. The same principle must govern in reference to such a question as we have here whether the declaration is on the common counts or is framed specially upon the contract. He sued to recover on the note as it appeared in evidence, and in substance and effect he alleged that the plaintiffs in error made and delivered it in the shape it now bears. As the plea denied this, he was put to the proof of his allegations. He held the affirmative and was required to support it or be defeated.

On the concession that the signature was genuine, the note was properly admitted in evidence.--Hunter v. Parsons 22 Mich. 96. And the bare fact of the erasure, raised no legal presumption that the words "after due" in the printed form had been obliterated after execution.--Comstock v. Smith, 26 Mich. 306. At this stage of the case, therefore, and whilst there was no opposing evidence, the note could not be held invalidated by the circumstance that it was seen the particular printed words of the blank had at some time been erased, and it was properly to be regarded as affording sufficient inferential and presumptive...