Wolferman v. Bell

• Decision Date: 09 March 1893
• Citation: 32 P. 1017,6 Wash. 84
• Parties: WOLFERMAN v. BELL ET AL.
• Court: Washington Supreme Court

32 P. 1017

6 Wash. 84

WOLFERMAN v. BELL ET AL.

Supreme Court of Washington

March 9, 1893

Appeal from superior court, Spokane county; W. G. Langford, Judge.

Action by Laura Wolferman, administratrix, etc., of George C Schneider, deceased, against Harry C. Bell and others, to foreclose a mortgage for nonpayment of principal and interest. From a judgment in plaintiff's favor defendants appeal. Affirmed.

Turner Graves & McKinstry, for appellants.

Feighan Wells & Herman, for respondent.

DUNBAR C.J.

It would be profitless in this case to undertake to review the authorities, for they are numerous and irreconcilable; some courts holding that an alteration of the face of a writing raises no presumption either way, but that the question is one for the jury. Other courts have held that the alteration raises the presumption that it was made before delivery; others that in such cases the presumption attaches that the change was made after delivery, and that it must be explained before it is received in evidence; still others that it raises such a presumption only when it is suspicious; while in California it is held that the change in the printed words of an instrument raises no presumption against the instrument, while a change in the written words does raise such presumption. The rule that the alteration raises a presumption against the instrument cannot be indulged without conflicting with the general proposition that fraud is never presumed, and with another general proposition, that the burden of proof is upon the party who pleads an affirmative defense. If it is put in issue by the pleadings, it is a fact in the case to be determined by the jury, subject to the same rule of presumption as any other fact to be proven in the case. There is an abundance of authority to sustain this view, and we think it a reasonable one. As far as this particular case is concerned, there is no testimony whatever tending to show fraud on the part of Schneider and those claiming under him. The testimony of Bell and his wife cannot be considered by this court. They were certainly testifying concerning a transaction had by them with the deceased man, Schneider, and the testimony falls plainly within the inhibition in section 1646 of the Code. It matters not that the testimony was not objected to. It is objected to here. This court is trying the case de novo, and it must try it on legal testimony.

There was no...