Administrators of Beaman v. Russell

The opinion of the court was delivered by Hall, J. The first question to be considered is, whether the writing of indemnity, offered in evidence by the plaintiff, ought to have been excluded, because of the alteration, — admitted to be a material one, — appearing upon it. The question, upon whom the burden of proof devolves, when an instrument in writing appears to have undergone an alteration, is, upon the authorities, involved in considerable confusion and uncertainty. In the following cases, in this country, it is either decided, or declared, that such alteration will be presumed to have been made after the contract was executed, and that it lies upon the party producing the paper to explain the alteration. Prevost v. Gratz, Pet. C. C. 369. Morris v. Vanderlin, 1 Dal. 67. Jackson v. Osborne, 2 Wend. 555. Herrick v. Malin, 22 Wend. 388. Hills v. Barnes, 11 N. H. 395. Barrington v. Bank of Washington, 14 S. & R. 405. McMicken v. Beauchamp, 2 Miller’s Law R. 290. In the following cases this doctrine is either doubted, or denied. Clark v. Rodgers, 2 Greenl. 147. 1 Shep. 386. Wicks v. Caulk, 5 Har. & J. 41. Rankin v. Blackwell, 2 Johns. Cas. 198. Cumberland Bank v. Hall, 1 Halst. 215. Sayre v. Reynolds, 2 South. 737. Bailey v. Taylor, 11 Conn. 531. In Davis v. Jenny, 1 Metc. 221, the question was argued, but left undecided, Chief Justice Shaw observing, that “ The court considered it a question of very great importance.” — 211 — It would seem to have been the ancient doctrine of the common law, that an interlineation in a deed, if nothing appear to the contrary, will be presumed to have been made at the time it was executed. Trowell v. Castle, Keb. 22. 12 Vin. Abr. 58. Fitzgerald v. Fauconbridge, Fitzg. 204. 4 Cruise’s Dig. 338. Chit. on Bills. 212. Several modern English cases are, however, cited and relied upon by the counsel for the defendant, to show that the rule is now the other way, and that it is always incumbent on the party producing the instrument to explain any alteration, before it can be introduced in evidence. It is to be noticed, that ail these cases were upon hills of exchange, or promissory notes, which are required to be stamped, before they can be Used as evidence; and the cases should be read with reference to the English law on' that subject. Any material alteration of a bill, after it has issued, or, in other words, after it is in the hands of a party entitled to make a claim upon it, is held to make a new bill of it, rendering a new stamp necessary. Under the stamp act, any alteration renders a bill void, that would make it invalid at common law; and it may be void under that act, though otherwise perfectly valid. For the consent to the alteration, by the party sought to be charged, makes the bill valid at'common law; but, under the statute, the consent of all the parties to the bill is of no importance. If the bill be altered after it issues, no matter by whom, it becomes another bill, and requires a new stamp in order to make it evidence. Bathe v. Taylor, 15 East 412. Jardine v. Payne, 1 B. & Ad. 663. Chit, on Bills 207 to 212. The earliest of these English cases,, that of Johnson v. Dulce of Marlborough, 2 Stark. R. 313, in 1818, was decided with sole reference to the stamp act. The action was by the indorsee of a bill dated the 29th of January, 1S17, against the acceptor. The bill, upon its production, appeared to have been originally dated the 29th of December, 1816, and to have been altered by the defendant, the acceptor, to the 29th of January, 1817. Here was an end of the case, as to any common law defence. The defendant had made the alteration himself, and could not complain of it. But Abbott, Justice, intimated that it was necessary to prove, in addition, that the bill had not been indorsed before the alteration and acceptance. Comyn, for the plaintiff, submitted, that it was to be presumed, that the bill had — 212 — not been negotiated previous to the alteration, and that it was for the defendant to show that it had been so negotiated. But Abbott, J., said, “he could not presume one way, or the other; and unless it could be proved, that the alteration was.prior to the acceptance, the hill was void for want of a new stamp.” The plaintiff made the proof and had a verdict. So in the next case, Bishop v. Chambre, 3 C. & P. 55, in 1827, the effect of the alteration under the stamp act was alone considered. The note appeared to have been altered in its date, and Ld. Tenter-den, at nisi prius, left it to the jury, upon the appearance of the instrument itself, to say whether it had been altered after it had become a perfect instrument in the hands of the plaintiff-, and the jury found it had, and gave a verdict for the defendant. There was evidence of a recognition of the note by the defendant, after the alteration, from which the jury might, perhaps, have inferred his assent to it; and Denman afterwards moved the court, in bank, for a new trial, claiming that it should have been left to the jury to say, not only whether the note had been altered after it was signed, but whether, if so, it had been altered with the consent of the defendant. Ld. Tenterden said, “ If the note was ever given into the hands of the plaintiff, as a perfect instrument, it could not be altered with the consent of all the parties.” And Bayley, Justice, said, “It would require a new stamp.” So in the subsequent cases of Leykariff v. Ashford, 12 Moore 281, Taylor v. Moseley, 6 C. & P. 273, Sibley v. Fisher, 7 Ad. & El. 444, Knight v. Clements, 8 Ad. & El. 215, and Clifford v. Parker, 2 Man. & Gr. 909, the question was, whether the alterations had been made in violation of the stamp act, and the decisions turned upon that question. In Henman v. Dickinson the stamp act is not specially referred to; but as there is nothing in the case to exclude the idea, that it was decided in view of that act, and as it is impossible that the existence and operation'of the act could have been overlooked, or disregarded, by the court, the decision in that case must be placed in the same class with the others. It is obvious, that the rule of proof in regard to an alteration at common law, and under the English stamp act, need not necessarily be the same. The object of the common law rule of proof would be, to protect one party from the fraud of the other; that of the statute" — 213 — rule, to protect the revenue from the fraud of all the parties. If an alteration be against the interest of the party claiming, or be apparently in the hand writing of the party defending, and, in either case, wear no appearance calculated to excite a suspicion of an intended fraud upon the latter party, it might be unjust to the party claiming, to cast upon him the burden of showing, by extraneous evidence, when the alteration was made. But these considerations can have no weight, under the stamp act. The question under that statute is not, by whom, or how, the alteration was made, but merely the time when. One rule of evidence might, perhaps, be necessary to protect the interests of the government, while another might be quite sufficient for the preservation of those of the parties. And for the detection of fraud upon the revenue and to prevent its recurrence, a more stringent rule of proof may be required, in England, fay considerations of public policy, than justice to the parties would otherwise demand. It is sufficient, however, for the present purpose, to say, that the single question, upon whom the burden of proof devolves to account for an alteration in a written instrument, with reference to a supposed fraud upon the party, has never been presented to the English courts in any of these cases. It has always been coupled with and been over-ridden by the more extended question in regard to a supposed fraud upon the revenue. So far as the reasoning of the judges in these cases may be thought applicable to the naked question now before us, they are worthy of consideration; but as mere authoritative decisions, they can be entitled to no weight whatever. Amidst the conflict of authorities in this country, and with the little aid that can be derived from the modern English cases, I should be disposed to fall back upon the ancient common law rule, — that an alteration of a written instrument, if nothing appear to the contrary, should be presumed to have been made at the time of its execution. I think this rule is demanded by the actual condition of the business transactions of this country, and especially of this state, —where a great portion of the contracts made are drawn by the parties to them, and without great care in regard to interlineations and alterations. To establish an invariable rule, such as is claimed in behalf of the defendant, that the party producing the paper should in all cases be bound to explain any alteration by extrinsic .evidence, — 214 — would, I apprehend, do injustice in a very great majority of the instances, in which it should be applied. Such a rule might be tolerated, — might perhaps be beneficially adopted, — in a highly commercial country, like that of Great Britain, in regard to negotiable paper, which is generally written by men trained to clerical accuracy, and is upon stamped paper, the very cost of which would induce special care in the drawing of it; but I am persuaded its application here could not be otherwise than injurious. It is not often, that an alteration can be accounted for by extraneous evidence ; and to hold that, in all cases, such evidence must be given, without regard to any suspicious appearance of the alteration, would, I think, in many instances, be doing such manifest injustice, as to shock the common sense of most men. But perhaps a determination of the question, upon whom the burden of proof lies to account for an alteration in a written instrument, does not necessarily decide the precise question before us. If it were admitted, that the onus of explaining the alteration were upon the party producing the instrument, it might still be a question, whether the explanation should first be given to the court, or at once to the jury. No testimony is to go to the jury, but upon oath, and therefore some evidence must be given of the execution of the written instrument, before it can be submitted to them. The court necessarily determines, in the first instance, on the sufficiency of the proof; but whether a writing has been executed by the party sought to be charged is a question of fact; and when the writing is admitted in evidence, the jury may decide, over the head of the court, upon the same evidence, that the execution of the instrument is not proved; — or perhaps it is more accurate to say, the court determines that there is legal evidence tending to prove the execution of the instrument, and therefore submits it to the jury, for them to weigh and decide upon its sufficiency. Whether an alteration, appearing upon an instrument, was made before or after its execution, and if after, by whom and for what purpose, are also questions of fact for the jury. Coke Lit. 225, b. Shep. Touchstone 69. Bishop v. Chambre, 3 C. & P. 55. Emerson v. Murray, 4 N. H. 171. Bailey v. Taylor, 11 Conn. 531. Jackson v. Osborne, 2 Wend. 555. It is matter of fact, and not of law, whether the handwriting of the alteration is the same with that of the body of the instrument, — 215 — whether it is the same with that of the signature, whether the ink is the same, or different, whether, from the appearance of the alteration and the body of the instrument, both were written at the same time, or at different times, whether the party claiming, or the party sought to be charged, or a stranger, has made the alteration; in short, every possible circumstance, that would have a tendency to show the alteration to have been fraudulent, or otherwise. It can serve no good practical purpose, for the court to go into these inquiries, to determine whether the party has made a -grima facie case. On the usual proof of the execution of the instrument, it should, without reference to the character of any alteration upon it, be admitted in evidence, leaving all testimony in relation to such alteration to be given to the jury. It will doubtless be the duty of the court to give the jury proper instructions, upon any given state of facts. But any instructions in regard to the burden of proof should, I apprehend, be founded upon a supposed finding of the jury in regard to the alteration, rather than upon any assumption of the court in regard to it, because I think the character of the alteration, whether suspicious, or otherwise, is matter of fact for the jury, and not of law for the court. It is not, however, necessary to go into that question in this case. But generally, the whole inquiry, whether there has been an alteration, and if so, whether in fraud of the defending party, or otherwise, to be determined by the appearance of the instrument itself, or from that and other evidence in the case, is for the jury. The whole is matter of fact, and they must determine it from all the testimony before them. The next question is, whether the instrument in writing, offered by the plaintiff, tended to prove a legal contract. If it did, it should have been admitted. It is insisted, in behalf of the defendant, that the promise attempted to be proved was to answer for the debt, or default, of another, within the statute of frauds, and therefore necessary to be in writing; that the instrument, having been executed in the state of New York, is to be governed by the law of that state; that by the law of New York it is necessary, that the consideration, as well as the promise, should be in writing; that the instrument offered in evidence contains no statement of any consideration for the promise, is therefore invalid, and was consequently incompetent evidence to be submitted to the jury. — 216 — Was the contract attempted to be proved within the statute of frauds? Although the decisions upon the clause of the statute relied upon by the defendant are not all reconcileable with each other, yet it seems agreed in all the cases,’ that, if the promise is not collateral to the liability of some other person to the same party, it is not within the statute. Chit, on Cont. 507. Eastwood v. Kenyon, 11 Ad. 6 El. 438. In this case, unless there was some person liable to indemnify the plaintiff for signing the notes to the Bank of Rutland, other than the defendant, his undertaking was an original and not a collateral one. Does it appear from the writing offered in evidence, either in connection with the notes, or without them, that any other person than the defendant was in any manner liable to the plaintiff? If the plaintiff had signed the notes with the other makers of them, as their surety and at their request, the law would have implied a promise from them to indemnify him. But there is no evidence, that he signed as surety. For aught that appears, the liability to the Bank of Rutland might have been incurred for the sole benefit of the defendant, and he might have agreed to indemnify the other signers in the same manner that he did the plaintiff. Besides, there is no proof that the plaintiff signed the notes at the request of the other signers. The writing shows, that he signed at the request of the defendant, and on his special promise to indemnify him; and this fact would be calculated to rebut any presumption, that he signed at the request of the others, even if his name had appeared on the notes as surety. In the absence of all evidence that there was a liability of any other person to the plaintiff, to which the defendant’s promise could have been collateral, it must be treated as an original promise, not within the statute. It is not intended to say, that the defendant’s promise would have been within the statute, if it had appeared, that the plaintiff was surety for the other signers of the notes, and had become such at their request, as well as on that of the defendant. There are cases, in which a promise has been held to be an original one, though another person was liable on an implied promise. Swan v. Nesmith, 7 Pick. 220. Towne v. Grover, 9 Pick. 306. Blake v. Cole, 22 Pick. 97. And there are authorities, that a promise of indemnity for incuring a liability for an other is not within the statute. Cha217 pin v. Merrill, 4 Wend. 657. Thomas v. Cook, 8 B. & C. 728. Chapin v. Lapham, 20 Pick. 467. Parley v. Spring, 12 Mass. 297. Holmes v. Knights, 10 N. H. 175. But upon the question under any altered state of facts no opinion is intended to be expressed. The contract being held not to be within the statute of frauds, the other objections of the defendant, arising under that statute, have not been considered. We are all agreed, that the writing ought not to have been excluded, for any of the reasons assigned by the defendant, and consequently that there must be a new trial.