Sears v. Daly

Mr. Justice Bean, after stating the facts in the foregoing language, delivered the opinion of the court. 1. The failure of the plaintiff to prove his representative capacity, or that the note in suit was the property of the estate of which he was executor, was immaterial. The note is alleged to have been given to him after the death of his testator. Where a cause of action accrues to an executor or administrator after the death of the decedent, he may sue thereon either in his representative or his individual character, and, if the complaint states a cause of action in one or the other, it is sufficient: Burrell v. Kern, 34 Or. 501 (56 Pac. 809). The averment, therefore, as to the plaintiff’s representative character may be regarded as surplus-age, and the complaint still state a good cause of action in his favor as an individual. It is a matter of no moment to the defendant in what character the action is prosecuted, or how the complaint shall be construed in this respect. She could in any event set up whatever defense she may have to the note, and the judgment would be a bar to the prosecution of another action upon the same liability. There was no error, therefore, in the refusal of the court [350] to instruct the jury to return a verdict in favor of the defendant on account of the failure of proof, or in overruling her motion for judgment notwithstanding the verdict 2. In an action upon a promissory note, where its execution is denied by the defendant, there is no presumption that it has been regularly executed. In such case the plaintiff must establish the fact that it is the note of. the defendant, and on this proposition he has the burden of proof throughout: Byles, Bills (7 ed.), 438; Simpson v. Davis, 119 Mass. 269 (20 Am. Rep. 324); Mills v. United States Bank, 24 U. S. (11 Wheat.) 431. In case an instrument in form a promissory note is shown or admitted to have been executed, certain presumptions will attach to it in the hands of the holder, such as that it was made for a valuable consideration, regularly indorsed for value before maturity, is truly dated, and the like (Owens v. Snell, 29 Or. 483, 44 Pac. 827; Kenny v. Walker, 29 Or. 41, 44 Pac. 501); and, in an action thereon between the immediate parties, the onus is upon the defendant to establish any affirmative defense: Bailey, Onus Probandi, 221. But, where the making of the note is the point in issue, no presumption can attach until its execution is shown. A promissory note is a promise in writing to pay to a person therein named a certain sum of money at a specified time. Until the fact of the signing and delivery by the defendant, or by his authority, is established, there is no promissory note, and nothing to which a presumption can attach. The instruction of the court, therefore, that it will be presumed that the. note in suit was regularly executed, was erroneous, because it shifted the onus of proof from the plaintiff to the defendant. It was in effect ruling that, if no evidence whatever had been offered as to the execution of the note, the plaintiff would have been entitled to a verdict, or, if the evidence was equally balanced, the plaintiff should prevail on account of such presumption. It [351] thus shifted the burden of proof, and required the defendant to show affirmatively that she did not execute the note nor authorize its execution, when, under the law, the burden was upon the plaintiff. 3. The error was not cured by a previous instruction to the effect that the burden of proof was.upon the plaintiff to show that the defendant executed the note in question, as it is impossible to tell which instruction the jury followed. 4. The instruction that it will be presumed that the person who signed the note, if not Mrs. Daly, was innocent of the crime of forgery, was probably correct as a proposition of law, but we doubt its application to this case. Such an instruction would be eminently proper in a criminal action, and may sometimes be given in a civil action when the inquiry involves an examination of facts relating to the conduct of a party thereto which would constitute a crime (First Nat. Bank v. Commercial Assur. Co. 33 Or. 43, 52 Pac. 1050; Savage v. Savage, 36 Or. 268, 59 Pac. 461), but its propriety may well be doubted where some act of a third person, not a party to the litigation, is under consideration. However that may be, there is no question in this case concerning the crime of forgery. The only allusion to it is in the defendant’s answer. 5. The question upon the trial on this branch of the case was whether the act of the party signing the note, if not Mrs. Daly, was binding on her, either because she authorized or subsequently ratified it, and the burden of proof was upon the plaintiff to establish the agency or ratification: Connell v. McLoughlin, 28 Or. 230 (48 Pac. 218). As the judgment must be reversed for these reasons, it is unnecessary to consider the other assignment of error. Judgment reversed and a new trial ordered. Reversed.