Conable v. Keeney — 40 N.Y. St. Rep. 939

Majority

p. 939

Benjamin D. Conable, Resp’t, v. Mattison Keeney, Impl’d, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1891.)

Headnote

1. Bills and notes—Alteration—Estoppel.

In an action against endorsers oí a promissory note, it was alleged in the answer that the note was altered by the insertion of an interest clause. It appeared that plaintiff was a bona fide holder for value before maturity; that when he received it he showed it to defendant, who made no claim of an alteration, and that the defendants executed an agreement consenting to the maker’s release on payment of twenty-five per cent., the agreement setting out a copy of the note, including the interest clause, and containing a covenant that it should not affect their liability. Held., that they were thereby estopped from claiming that such alteration released them from liability.

2. Same—Burden of proof.

A defense of alteration of a note sued upon is an affirmative one, and the burden of proof rests on the defendant.

Appeal by the defendant from a judgment entered against him in Wyoming county in favor of the plaintiff on the verdict of a jury-

Byron Healy, for resp’t; Augustus Harrington, for app’lt.

The action was brought to recover upon a promissory note of $2,000 made by Henry Garretsee, payable to the order of Norris Gay and endorsed by the payee and the defendant Mattison Keeney.

The answers of the defendants were a general denial of the complaint ; that the defendants were accommodation endorsers, and that after the making, endorsing and delivery of the note it was without the defendant’s consent altered by enlarging the time of its payment, and by adding thereto the words “ with interest after the first day of March next” At the close of the evidence the complaint as to the defendant Gay was dismissed.

The plaintiff proved the making of the note, its endorsement by the defendant, the transfer of the same to him before maturity for a valuable consideration, and the protest thereof, and read the note in evidence.

The defendants Keeney made no objection to its being read in evidence, and made no claim that the alterations complained of were such upon the face of the note as to excite attention or suspicion.

The defendant thereupon introduced evidence tending to show that at the time they endorsed the note the time of the payment of the note was left blank, and that the interest clause was not then in the note.

The evidence thus introduced consisted of the testimony of the defendants Keeney and Gay and the testimony of a witness who had been a druggist and claimed to be acquainted with the composition and properties of ink.

He testified that, in his opinion, the words “ with interest after the first day of March next ” were written in different ink from the balance of the note. He was allowed, and testified that the letter “y” in the word “day” in the interest sentence overlapped the letter “ g ” in the maker’s name, and in his opinion was written after the signature of the maker.

At the close of the defendants’ evidence the plaintiff testified that there has been no alteration or changes made in the note since the purchase of the same by him; that he showed it to the defendant Keeney about the time it became due; that Keeney examined it, admitted his endorsement, and made no claim that the note had been altered. He gave farther evidence tending to show that the words “ with interest after the first day of March next ” were in the handwriting of the maker of the note. He read in evidenpe an agreement executed by the defendants after the note came due, consenting that the plaintiff accept from the maker twenty-five cents on the dollar of the amount of the note and release him from liability upon the note.

The agreement contained a clause that the release of the maker should not in any sense affect or modify the liability of the endorsers to the owner of the note, and should not modify or impair their liability upon the note. Upon the delivery of the agreement the plaintiff accepted the twenty-five per cent upon the note from the maker and released him from all liability thereon.

There was embodied in the agreement what purported to be a true copy of the note, interest clause included.

p. 941

No question was raised by the defendant as to its correctness. This was an important item of evidence against the defendant.

This appeal being only from the judgment, and no motion for ■a new trial having been made, nothing but the exceptions were brought up for review.

The plaintiff made a prima facie case against the defendant, Keeney. The claim that the note had been materially altered was for the defendant to establish. Gay being a party to the action at the time he gave his testimony, the question of his credibility and that of Keeney was for the jury.

The plaintiff contends that the agreement estops the defendant from questioning the note. He had presented to him in the .agreement what purported to be a correct copy of the note; the interest clause was concededly in the handwriting of the maker.

He allowed the plaintiff to release the maker upon his pajing twenty-five per cent of the note, without disclosing to him that .an alteration had been made which released him as endorser.

Having kept silent, it may well be held he is now estopped from making the claim, notwithstanding the clause in the agreement that it shall not be construed to deprive him of any valid' defense which he had before making the agreement.

It was a question for the jury on the evidence whether the defendant established the defense of the alteration of the note, and their verdict on that question cannot be reviewed here.

The appellant contends that the judgment should be reversed 'for errors in the charge of the judge, and claims first that it was ■error to charge that it was incumbent upon the defendant Keeney to satisfy the jury that the note was altered as alleged.

We have examined the charge, and fail to find that any material error was committed. It seems to have been fully and fairly presented to the jury.

The court charged the jury, if they were satisfied of the facts ¡shown by the plaintiff, he was entitled to a verdict against the defendant unless the defense interposed by the defendant Keeney ■was made out to their satisfaction.

The defendant contends that the burthen of proof was upon the plaintiff to establish that the note had not been altered as alleged by the defendant. We do not so understand the rule. The alteration of the note was an affirmative defense, and was to be established by the defendant.

The appellant specially calls attention to the refusal of the judge to charge the request of the defendant that “ the plaintiff is here seeking to recover upon the endorsed instrument which he produces. Now it is incumbent upon him under all the evidence in the caseto satisfy the jury that the defendant indorsed that instrument as it now is, so far as the question of execution is concerned.” And the court declined to so charge. The trial justice had substantially .charged that proposition in the body of his ■charge, and had fully and correctly instructed the jury as to the burthen of proof.

The defendant’s counsel, as is not unusual, presented many requests to charge, which were substantially alike.

p. 942

The one refused was in effect the same as was afterwards at defendant’s request charged by the court, and we are not able to see that the jury could have been misled by the refusal of the court to make the charge complained of.

Other questions raised by the appellant have been examined,, and we fail to discover any reason for a reversal of the judgment. The judgment should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.