Lewis v. Garretson

Day, J. It is apparent from the foregoing statement that it was a material inquiry whether the words above Englebeck’s signature were written without authority or consent, and under such circumstances as would discharge him from liability upon his guaranty. Upon this branch of the case the court instructed the jury as follows: “3. If you find from the evidence that the writing over the name of Englebeck, on the back of the note, and dated May [280] 30, 1876, was done by the plaintiff after the name ofEnglebeck was indorsed upon the note by him, and that the same was done without his knowledge and consent; and you further find that the name' of Englebeck was indorsed upon the note at or before the time that the same was sold to the plaintiff and the defendant executed the written guarantee introduced in evidence before you, this would be such an alteration as would release the said Englebeck, and also defendant, from any liability in this case on the note or guaranty. And if the writing was put over the name of Englebeck after he indorsed the same, and whilst in plaintiff’s possession, it is incumbent upon the plaintiff to explain the alteration, if any. “4. But you will not be justified in finding that the nóte was altered as to the indorsement of Englebeck, falsely, with intent to defraud, by writing over his name words increasing the liability of said Englebeck, unless you are satisfied beyond a reasonable doubt that the same was true, and a preponderance of evidence is not sufficient to establish a forgery, or release a party on the ground of a. forgery.” The 4th instruction is erroneous, and the giving of it, under the issues involved, was prejudicial to the defendant. See Welch v. Jugenheimer, ante, p. 11. The sufficiency of the evidence to support the verdict, and the other errors assigned, we need not consider. Reversed.