Hodge v. Gilman

Caton, C. J. This bill was filed to enjoin the collection of, and to set aside and vacate a judgment entered in the Common Pleas, in favor of the respondents, against the complainant. The judgment was confessed by an attorney, and the ground alleged for the relief sought, is, that the power under which the attorney acted was altered in a material part after it was executed by the complainant, without his authority, and so it was not his deed. The note and the power of attorney, as they appeared at the time the judgment was confessed, were as follows,—those parts in Roman letters being in print, and those in italics being in writing: $1047.87. Chicago, July 1th, 1857. Sixty days after date, promise to pay to the order of M. D. Oilman & Co., ten hundred and forty-seven 87-100 dollars, for value received, with interest at the rate of ten per cent, per annum after due, payable at their office in Chicago. B. O. HODGE. Know all men by these presents, that whereas, the subscriber, B. O. Hodge, jusiily indebted to M. D. Gilman & Co., upon a certain promissory note for the sum of ten hundred and forty-seven 87-100 dollars, bearing interest at the rate of , after due and ' ten per cent, per annum due sixty days from date, and payable to the order of M. D. Gilman & Co. How, therefore, in consideration of the premises, I do hereby make, constitute, and appoint Gallup Hitchcock, or any attorney of any court of-recdrd, to be my true and lawful attorney irrevocably, for and in my name and stead to enter my appearance at any time, when the same can be legally done beftire any court of record or justice of the peace, in any of the States or territobefore or ries of the United States of America, at any time after the said note becomes due, to waive service of process, and confess a judgment in favor of the said M. D. Gilman & Co., or their assigns, upon the said note, for the above sum, or for as much as shall appear to be due, according to the tenor and effect of said note, and interest thereon, to the day of the entry of said judgment; and also twenty-five dollars for counsel fee, and release all errors that may intervene in entering up said judgment or in issuing execution thereon. Hereby ratifying and confirming all which they, said attorneys, may do by virtue hereof. Witness my hand and seal at Chicago, this 1th day of July, 1857. In presence of B. O. HODGE. {L. <S.] G. H. Morrison. The alleged alteration is in the interlining of the words “ before or ” between the words “ time ” and “ after,” in the power of attorney. It is not denied that the words are material, for it was in fact only by force of these words that the judgment was entered at the time it was, which was before the maturity of the note. The only testimony taken at all material to the point in issue, was that of the subscribing witness, (Morrison), who says he witnessed the power of attorney, and that at that time, his attention was called to no interlineations in the power of attorney, and that he saw none. This, in fact, amounts to but very little, for the first interlineation which occurs, and of which no complaint is made, we may fairly presume xvas made at the time it was executed.; or, at least, if it xvas inserted afterwards, it was in pursuance of an implied authority from the maker, for it made it correspond xvith the note to which it referred and xvas attached. The fact, hoxvevcr, that there was a subscribing witness to the instrument, whose attention should have been called to the interlineation, and it noted in the attestation, by the party for whose benefit the paper was executed, should by no means be overlooked in the consideration of the case. The party xvho receives a paper interlined in a material part, should see that the interlineation is noted in the attestation, or he must assume the responsibility of explaining it afterxvards. It is, at least, the settled laxv of this coui interlineations must be explained by the party claim lineations were made after the execution by the m presumption arises from business convenience, the either that it xvas made before or after it xvas execi the former, no man would ever be safe in signing ai matter how fairly drafted, for the holder, having i session and control, could interline it at pleasure, a upon the maker to show that the alterations xvere made after its execution, xvliich,if the alterations were made by the same hand that wrote the body of the instrument, it would, in most cases, be impossible for him to do. But we shall not stop to discuss at length the propriety, and even the necessity, of this legal presumption. It is sufficient that it has been deliberately settled by this court, in the case of Walters v. Short, 5 Gilm. R. 252, and that xve noxv entirely approve of that decision. parties, and the necessities of the case. The law n: efit of the paper, the presumption of law being th In the argument here, a distinction is attempted to be drawn betxveen this case and that, insisting that there the party producing the instrument xvas claiming to recover a judgment upon it, xvhilc here a judgment has already been obtained upon the note, which the maker seeks to avoid by setting up affirmatively that the power of attorney has been altered since its execution. It is true, that the complainant in this case must take the affirmative, to slioxv that the instrument has been altered since he signed it; and so it is xvhen an action is brought upon a promissory note, xvhen the handwriting of the maker is proved. That binds him prima facie, and to avoid the apparent obligation of the instrument, he must assume the responsibility of showing that it is not the instrument it xvas xvhen he signed it; that it has been since altered; and anything which would prove an alteration in the one case, xvould establish it in the other. That, xve say, as matter of law, is done by shoxving to the court, that the instrument has been interlined in a material part, which changes the onus and imposes the duty upon the other side to show that the alteration was in fact made before it was executed ; or that it was done subsequently, with the authority or consent of the maker. Nor does this necessarily require the production of a witness who saw the alteration made. The very face of the paper may show satisfactorily that the alteration was made with the consent of the maker, or at least it may raise that presumption, and destroy the first presumption arising from the simple fact of interlineation. The first interlineation in this power of attorney may be of this kind. Again, an interlineation may be shown to be in the handwriting of the maker. In that case, when the instrument is inspected, and a material interlineation or alteration is apparent, the law at once presumes that it was without authority, but that presumption is at once destroyed and succeeded by another when the alteration is shown to be in the handwriting of the maker. And so in many other ways may the first presumption be destroyed by a further inspection of the face of the paper. In this case there is nothing on the face of the paper itself, or in the extrinsic proof, in the least weakening the presumption of law already stated. The alteration is in a material part of the paper, to the palpable detriment of the complainant, and as manifestly to the advantage of the respondent, and above all, it is not naturally consistent with the terms of the note to which it refers, and is a harsh and unjust provision, which, if the law will not at once repudiate, as oppressive and inconsistent with public policy, yet it may be characterized as a modern invention of refined avarice, to which it is to be presumed no sane man will submit, until his children are crying for bread, or his affairs are so desperate that the most reckless measures cannot make them worse. There is nothing then in the character of this alteration calculated to rebut the legal presumption which arises from the fact of interlineation. That presumption is left to work its way, and under its influence we are bound to say that the power of attorney under which the attorney acted, who confessed this judgment, was not the one which the complainant executed. Several other points have been raised on the argument—-as to the jurisdiction of the court of law to sot aside the judgment, 'and some others which we do not think it necessary to discuss. The decree below must be reversed, and decree entered here according to the prayer of the bill. Decree reversed.