Colonial Trust Co. v. Getz , 28 Pa. Super. 619 ( 1905 )

Opinion by

Rice, P. J.,

It is well settled in Pennsylvania that when a promissory note “clearly shows upon its face ’’'that it has been altered in some material part, such as its date or the time or place of payment, it is incumbent on the party producing it and claiming under it to remove the suspicion thus raised as to the genuineness of the instrument by accounting for the alteration. In such a case the note should not be admitted in evidence, except in connection with evidence tending to explain the alteration. Heffner v. Wenrich, 32 Pa. 423; Hill v. Cooley, 46 Pa. 259; Hartley v. Corboy, 150 Pa. 23; Sunday v. Dietrich, 16 Pa. Superior Ct. 640, are cases in which this precise question arose and was decided in the way we have stated. But in Clark v. Eckstein, 22 Pa. 507, which was an action against the indorser of a promissory note purporting to be dated in 1851, it appeared upon the face of the note at the last figure of the date that there ivas a blot of ink and an erasure; that is, the paper showed that it had been scraped by some instrument. The defendant contended that the date of the note had the appearance of having been changed by this erasure from 1850 to 1851. He, therefore, objected to its admission in evidence without explanation. The objection was overruled, and the court charged that the preliminary question whether the erasure was an alteration of the date or a mere erasure of a blot was for the jury; but that if it was an alteration it avoided the note, unless shown by the evidence to have been made anterior to or at the time of the execution of the instrument, or with defendant’s consent if subsequent to such execution. Upon writ of error taken by the defendant two questions were squarely raised : first, whether it ivas error to admit the note in evidence without explanation of the •erasure ; second, whether it ivas error to submit to the jury the question whether it ivas an alteration of the date or a mere erasure of a blot. Justice Knox, who delivered the opinion of the Supreme Court, first stated the rule applicable where a promissory note “clearly shows upon its face” that it has been altered in some material part, and then said : “ But the preliminary question whether there has been an alteration, if doubtful, is for the jury. In the present case, the last figure in the date of the note upon which the suit was brought is blotted, and there appears at its side, an erasure, but whether it was the date or the blot that was attempted to be removed was properly left to the jury as a question of fact. ” As the alleged alteration of the note in suit is not more clearly apparent upon inspection than Avas that Avhich Avas the subject of investigation in the case cited, Ave cannot say that it Avas error to admit the note in evidence and to take the opinion of the jury upon the question of alteration. We remark in addition, that the plaintiff, in rebuttal, adduced direct and positive testimony that the note was in the same condition as Avhen it was indorsed by the defendant.' “ It has often been ruled that if testimony, incompetent at the time of its admission becomes competent at a later stage in the trial, its admission is not cause for reversal:” Laird v. Campbell, 100 Pa. 159. It is not clear that the same ruling might not be made in this case. The first assignment is not sustained.

The excerpt from the charge contained in the fourth», assignment of error does not fully express the idea which the charge asa whole conveyed to the jury. Taking it in connection Avith what precedes and Avhat immediately follows, and bearing in mind that there Avas no request for specific instructions as to presumptions, we are of opinion that it contains no error of Avhich the defendant can justly complain. For these reasons the assignment is overruled. But as the case must go back for another trial it is appropriate that we should, consider the question sought to be raised by it. In the leading case'upon the subject Chief Justice Gibson stated the rule as follows: “ As notes and bills are intended for negotiation, and as payees do not usually receive them when clogged with impediments to their circulation, there is a presumption that such an instrument starts fair and untarnished, which stands till it is repelled; and a holder ought, therefore, to explain why he took it branded with marks of suspicion which would probably render it unfit for his purpose:” Simpson v. Stackhouse, 9 Pa. 186. This rule was enunciated at a time when parties were not competent witnesses, and it has been suggested that one of the reasons given for the rule, namely, that “ without a presumption to sustain him, the maker would in every case be defenseless,” does not now exist. But notwithstanding the change in the law whereby in many cases parties have been made competent witnesses, the rule has been consistently adhered to: Paine v. Edsell, 19 Pa. 178; Heffner v. Wenrich, 32 Pa. 423; Hill v. Cooley, 46 Pa. 259; Nagle’s Estate, 134 Pa. 31; Miller v. Stark, 148 Pa. 164; Hartley v. Corboy, 150 Pa. 23; Gettysburg Nat. Bank v. Chisolm, 169 Pa. 564; Bowers v. Rineard, 209 Pa. 545; Sunday v. Dietrich, 16 Pa. Superior Ct. 640; Alexander v. Buckwalter, 17 Pa. Superior Ct. 128. The very able opinion filed by the learned judge below contains a strongly persuasive argument in support of the proposition that the rule ought not to be extended to a case where there is nothing on the face of the paper to create suspicion, and the proof of alteration consists wholly of extraneous evidence. On the other hand, it is argued by the appellant’s counsel that if any distinction is to be made between a plain alteration, and an alteration evincing premeditation, care, and sufficient skill to prevent detection upon ordinary inspection, it should be the reverse of that suggested by the learned judge. But that precise question is not the one presented by the facts of this case,’ therefore we will express no opinion upon it. What is meant by the terms “ apparent alteration ” ? Do they mean that it must be so apparent upon ordinary inspection as to leave no room for doubt ? Clearly not, under the decisions. In Hill v. Cooley, 46 Pa. 259, the note on which suit was brought was a planted blank with the spaces properly filled in writing. Commencing under the words “ value received ” and slanting upwards between them and the signature of the maker were written the words, “ payable at N. Holmes & Son.” This was held sufficient to bring the case within the rule laid down in Simpson v. Stackhouse. "Woodward, J., speaking of the words last quoted said: “Had they been written in a straight line from where they started, they would have interfered with the signature, but they slant upward so as to avoid it, and thus give the paper a very suspicious aspect.” In Gettysburg National Bank v. Chisolm, the allegation was that, after the note was signed, the words “ with interest at 6 per cent ” were interlined in writing between the partly written and partly printed line containing the amount of the note and the printed line, “ without defalcation for value received.” The only evidence upon the face of the note to sustain the defendant’s contention, or t,o excite suspicion even, was that the words did not occupy the whole line, and they began a little to the right of the other lines. It was declared by Mr. Justice Green that this was sufficient to put the discounting bank upon inquiry. In neither of these cases did the appearance of the note conclusively indicate that there had been an alteration and preclude any other inference. In the present case the note bears some evidence on its face that the area covered by the due date had been scraped before the date was written, and stronger evidence that the figure 2 in the other date, January 29, was originally 1, and that the upper loop and the tail below were added to it so as to make the figure 2. These appearances do not conclusively show that there was an alteration either before or after signing, but they are “ marks of suspicion,” to adopt the words of Chief Justice Gibson ; they give the paper “ a suspicious aspect,” to adopt the words of Justice "Woodward. We are inclined to the opinion that this is one of those doubtful cases in which the court is justified in submitting the preliminary question of alteration to the jury, as was done in Clark v. Eckstein, 22 Pa. 507, and Miller v. Stark, 148 Pa. 161. But in view of the equivocal and suspicious appearance of the note we are also of opinion that in the event of their finding that there was an alteration it would be their duty to find that the note was avoided, unless the alteration be shown by the evidence to have been made anterior to or at the time of the indorsement, or with defendant’s consent, if made subsequent thereto, or the case be brought within the last clause of sec. 124 of the act of 1901.

Sec. 124 of the negotiable instruments law provides as follows : “ Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided except as against a party who has himself made, authorized or assented to the alteration, and subsequent indorsers. But when an instrument has been materially altei’ed, and is in the hands of a holder in due course not a party to the alteration, he may enforce payment thereof according to its original tenor:” Act of May 16, 1901, P. L. 194. It is not claimed that the second clause of the section applies to the case, as it is presented by the pleadings and evidence, nor is the plaintiff attempting to recover otherwise than upon the note in its present condition. Hence, evidence that the proceeds of the original note, of which this was the last of several renewals, were applied to the payment of the premium upon a policy of life insurance in which the defendant had an interest, was irrelevant to the issue. It would have been inadmissible if it had been offered in the presentation of the plaintiff’s case in chief. It was equally so when offered in rebuttal. The sole defense was that the note had been altered after it was indorsed, and no evidence, relevant or .irrelevant, had been given in support of that defense which brought in question the consideration of the original note, or the purpose for which it was given, or the application that was made of its proceeds. In short, there is nothing in the pleadings or evidence that made this evidence admissible for any purpose. In answer to the suggestion that it was admissible to counteract the possible influence of a statement made by the defendant’s counsel, in opening his case to the jury, to the effect that his client was a mere accommodation indorser, it seems sufficient to say that there is no reason whatever to suppose that this result might not have been accomplished by an admonition to the jury that it was wholly immaterial whether he had an interest in the note other than that of a mere accommodation indorser or not. Passing the •technical objection that the statements of counsel in opening a case to the jury do not appear of record, we remark that it must be a very exceptional case indeed in which it can be held on appeal that the admission of evidence, otherwise irrelevant and inadmissible, is not erroneous when offered for the purpose above suggested. This is not such a case. The admission of irrelevant evidence is not always ground for reversal, but it is so where it has a tendency to draw the minds of the jury from the issue, and to prejudice, confuse or mislead them. Upon a full consideration of the question we are of opinion that the second assignment of error must be sustained.

The issue, under the pleadings, was whether the note was altered in a material part after it was indorsed by the defendant. But the court instructed the jury that, under the evidence, the question was “whether there was any alteration in the particulars claimed by the defendant before the negotiation of the note and after it was indorsed by the defendant.” This was put upon the ground that the testimony of the plaintiff’s witness that it was not altered after it came into the plaintiff’s hands was uncontradicted. The fact testified to by the witness was a very important one. Possibly it would not, of itself, overthrow the defense and establish the plaintiff’s case, but it was a step in that direction. Therefore it cannot be said that the instruction, even if erroneous, did not injure the defendant. Nor is that claimed by anyone. Was it erroneous ? It is to be observed that the testimony did not relate to a question of fact concerning which the plaintiff would be expected to be informed, or to have the ability to produce testimony either one way or the other. Hence the nonproduction by him of counter testimony cannot be made the basis of an inference of fact or a presumption of law unfavorable to him. This alone is sufficient to distinguish the case from the concededly exceptional cases of Holland v. Kindregan, 155 Pa. 156, and Lonzer v. Lehigh Valley Railroad Co., 196 Pa. 610, and to prevent the application of the rule therein laid down. Furthermore, it is to be borne in mind that the witness is the officer of the plaintiff company with whom the discount of the note was negotiated by the maker; therefore, it could not be asserted, certainly not by the court, that he went upon the witness stand wholly indifferent to the result of the trial. Suppose he had been the holder of the note and the plaintiff in the case, and his testimony and his appearance and conduct upon the witness stand had been precisely the same as in this case, would the court have been warranted in charging the jury that they must accept his testimony as verity? We think no one wo'uld be willing to go quite as far as that. This is not an inapt illustration; for liability to pecuniary gain or loss from the event of the suit is not the only interest or motive which may be supposed to influence a witness and which a jury may take into consideration in determining as to his credibility. To establish a rule that would require the submission of the credibility of the witness to the jury in the supposed case, and Avould not require it in the present case would be illogical, unsound in principle and contrary to the overwhelming weight of authority. We find nothing in the testimony to incline us to make any imputation of lack of candor against the witness. So far as we can see he Avas candid and truthful. But Ave are not dealing with a rule which is to be applied or not applied in accordance Avith the opinion of the court as to the credibility of the witness. There are exceptions to it, it is true; but Ave are all of opinion that this case is not an exception to the general rule that Avhen proof of a fact depends upon oral testimony, it is the province of the jury to decide, under instructions from the court as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict, contrary to the weight of the evidence: Reel v. Elder, 62 Pa. 308; Madara v. Eversole, 62 Pa. 160; West Branch Bank v. Donaldson, 6 Pa. 179; Grambs v. Lynch, 4 Penny. 243; 20 W. N. C. 376; Lehigh Coal & Nav. Co. v. Evans, 176 Pa. 28; Lantner v. Kann, 184 Pa. 334; Barnett v. Becker, 25 Pa. Superior Ct. 22; Edwards v. Woodruff, 25 Pa. Superior Ct. 575, 582. In these, out of the many cases that might be cited, the question as to the applicability of the rule - where the testimony of the Avitness is not contradicted, was raised and distinctly passed on. See also Gibson v. Western N. Y. etc, R. R. Co., 164 Pa. 142; Dinan v. Supreme Council, 210 Pa. 456; Cromley v. Penna R. R. Co., 211 Pa. 429. The fifth and sixth assignments are sustained.

Judgment reversed and a venire facias de novo aAvarded.