Germania Bank v. Distler

Headnote

Date of insti’ument only presumptive evidence of time of its execution —mistake in — may be shown by pa/rol evidence, by indorsee as well as payee.

The date of an instrument in writing is only presumptive evidence of the time of its actual execution, and such presumption, whenever fraud or mistake is alleged, may be contradicted by parol evidence. (Drake v. Rogers, 32 Maine, 524; 1 Parsons on Bills and Notes, 41; Draper v. Snow, 20 N. Y., 331 ; Breck v. Cole, 4 Sandf., 80 .)

Such mistake may be shown as well by the indorsee as by the payee of a promissory note.

Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury.

This action was upon a promissory note, made by the defendant, payable to the order of Altenbrandt Brothers, and by them indorsed to the plaintiff. It was dated on the 18th of December, 1872, and was due in three.months after its date. The complaint alleged that

the note was dated in 1872 by mistake, and that it was designed to have been dated in 1871. The answer denied these allegations, and the parties went to trial on this and another issue in the cause ■ not considered on the appeal. It was objected by the defendant that the alleged mistake could not be shown by the plaintiff, or under the pleadings.