I. Introductory, 1455.

II. In general, 1455. III. Pleadings, 1462.

I. Introductory.

Much confusion and apparent conflict of authority has arisen on the question of burden of proof of alteration of instruments. Part of this has been due to a failure of some of the courts to distinguish between cases where the alteration is apparent on the face of the instrument and those where it is not. Part has been due also to a failure sometimes to recognize clearly the proper use of the term "burden of proof." The reported case (FIRST NAT. BANK V. FORD, ante, 1441) points out the different uses of the term, and indicates its proper meaning. It is well settled that a distinction as regards the present question may be drawn between cases where the alleged alteration is apparent on the face of the instrument, and where it is not. Among other cases recognizing a distinction in this regard are: United States v. Linn (1843) 1 How. (U. S.) 104, 11 L. ed. 64; United States Fidelity & G. Co. v. Damskibsaktieselskabet Habil (1903) 138 Ala. 348, 35 So. 344; Arnold v. Wood (1917) 127 Ark. 234, 191. S. W. 960; Harris v. Bank of Jacksonville (1886) 22 Fla. 501, 1 Am. St. Rep. 201, 1 So. 140; Craig v. National City Bank (1921) 26 Ga. App. 128, 105 S. E. 632; Dewey v. Merritt (1902) 106 Ill. App. 156; Meikel v. State Sav. Inst. (1871) 36 Ind. 355; Williamsburgh Sav. Bank v. Solon (1893) 136 N. Y. 465, 32 N. E. 1058; Gettysburg Nat. Bank v. Gage (1897) 4 Pa. Super. Ct. 505.

It may be observed that in the FORD CASE the court states that its decision is confined to a case where an instrument shows no apparent alteration on its face, and that it is probable that, when a suspicious alteration appears on the face of the instrument, a different rule would be adopted.

In Dewey v. Merritt (1902) 106 III. App. 156, the court said that the true

rule is that an alteration apparent upon the face of a note must be presumed, prima facie, to have been made after the instrument was executed, and that the burden is upon the holder of the note to show the contrary; but that where the alteration is not apparent upon the face of the instrument, the burden of proof is upon the defendant, who sets up the alteration as a defense.

But in some states the burden of proof of alteration, even in the case of alterations apparent on the face of the instrument, is held to be upon the party who attacks the instrument, to prove that the alterations were made after delivery, and without authority. See, for example, Hagan v. Merchants & B. Ins. Co. (1890) 81 Iowa, 321, 25 Am. St. Rep. 493, 46 N. W. 1114, and McGee v. Allison (1895) 94 Iowa, 527. 63 N. W. 322.

The annotation is concerned with the question of the burden of proving whether or not there has been an alteration, and not with other questions which assume that the instrument was altered; such as, whether there is a presumption that the alteration was fraudulent or otherwise. See, for example, Eddy v. Bond (1841) 19 Me. 461, 36 Am. Dec. 767.

77 Ala. 528; Montgomery v. Crossthwait (1890) 90 Ala. 553, 563, 12 L.R.A. 140, 24 Am. St. Rep. 832, 8 So. 498; Bouldin v. Barclay (1898) 121 Ala. 427, 25 So. 827; United States Fidelity & G. Co. v. Damskibsaktieselskabet Habil (1903) 138 Ala. 348, 35 So. 344.

Arkansas.-Arnold v. Wood (1917) 127 Ark. 234, 191 S. W. 960.

Colorado. See Huston V. Plato (1877) 3 Colo. 402.

Florida. Harris v. Bank of Jacksonville (1886) 22 Fla. 501, 1 Am. St. Rep. 201, 1 So. 140.

Georgia. Brown v. Colquitt (1884) 73 Ga. 59, 54 Am. Rep. 867; Craig v. National City Bank (1921) 26 Ga. App. 128, 105 S. E. 632.

Illinois. (Term "burden of proof" used apparently in sense of duty to proceed with evidence; see Illinois cases, infra.) Merritt v. Dewey

(1905) 218 Ill. 599, 2 L.R.A. (N.S.) 217, 75 N. E. 1066, decision on earlier appeal to same effect in (1902) 106 III. App. 156. See also Lowman v. Aubery (1874) 72 Ill. 619, and Central Trust Co. v. Kendall (1916) 202 III. App. 294. Indiana. Johns v. Harrison (1863) 20 Ind. 317; Meikel v. State Sav. Inst. (1871) 36 Ind. 355; Cochran v. Nebeker (1874) 48 Ind. 459; Insurance Co. of N. A. v. Brim (1887) 111 Ind. 281, 12 N. E. 315; Fudge v. Marquell (1904) 164 Ind. 447, 72 N. E. 565, rehearing denied in (1905) 164 Ind. 454, 73 N. E. 895 (rule stated generally without regard to question whether alteration was apparent).

Iowa. Warren v. Chickasaw County (1862) 13 Iowa, 588; Odell v. Gallup (1883) 62 Iowa, 253, 17 N. W. 502 (rule stated generally); Potter v. Kennelly (1890) 81 Iowa, 96, 46 N. W. 856; Beck v. Heckman (1908) 140 Iowa, 351, 132 Am. St. Rep. 277, 118 N. W. 510; Hessig-Ellis Drug Co. v. ToddBaker Drug Co. (1913) 161 Iowa, 535, 143 N. W. 569. See also Van Horn v. Bell (1861) 11 Iowa, 465, 79 Am. Dec. 506; Des Moines Nat. Bank v. Harding (1892) 86 Iowa, 153, 53 N. W. 99; Re Brown (1894) 92 Iowa, 379, 60 N. W. 659.

Kansas.-J. I. Case Threshing Mach. Co. v. Peterson (1893) 51 Kan. 713, 33

Kentucky.

Pac. 470; Forbes v. Madden (1916) 98 Kan. 559, 158 Pac. 850; Wagler v. Tobin (1919) 104 Kan. 211, 178 Pac. 751. Darraugh v. Denny (1922) 196 Ky. 614, 245 S. W. 152 (rule stated generally); Thacker v. Booth (1888) 9 Ky. L. Rep. 745, 6 S. W. 460 (same); Marion Nat. Bank v. Russell (1891) 13 Ky. L. Rep. 332 (abstract). Louisiana. Oakey v. Hennen

Odlin (1912) But see Foss

(1841) 18 La. 435. Maine. Stevens v. 109 Me. 417, 84 Atl. 899. v. McRae (1909) 105 Me. 140, 73 Atl. 827.

Mississippi. Jackson v. Day (1902) 80 Miss. 800, 31 So. 36.

Missouri. La Belle Sav. Bank v. Taylor (1897) 69 Mo. App. 99 (general statement, opinion not showing whether alteration was apparent); Hatch v. Bayless (1912) 164 Mo. App. 216, 146 S. W. 839; Roettger v. Rothermel (1923) Mo. App. —, 251 S. W. 427.

Nebraska.-Hodge v. Scott (1901) 1 Neb. (Unof.) 619, 95 N. W. 837; McClintock v. State Bank (1897) 52 Neb. 130, 71 N. W. 978; Anderson v. Chicago & N. W. R. Co. (1911) 88 Neb. 430, 129 N. W. 1008; Teske v. Baumgart (1916) 99 Neb. 479, 156 N. W. 1044. See also Colby v. Foxworthy (1907) 80 Neb. 239, 114 N. W. 175, rehearing denied in (1908) 80 Neb. 244, 115 N. W. 1076 (recognizing rule).

New York. Williamsburgh Sav. Bank v. Solon (1893) 136 N. Y. 465, 32 N. E. 1058; Conable v. Keeney (1891) 40 N. Y. S. R. 939, 16 N. Y. Supp. 719. See also Barker v. Stroppel (1910) 124 N. Y. Supp. 865, infra.

North Dakota. Riley v. Riley (1900) 9 N. D. 580, 84 N. W. 347.

Ohio.-See Franklin v. Baker (1891) 48 Ohio St. 296, 29 Am. St. Rep. 547, 27 N. E. 550.

Bank v. Gage (1897) 4 Pa. Super. Ct. 505; Alexander v. Buckwalter (1901) 18 Lanc. L. Rev. 233 (recognizing rule).

South Dakota.-Cosgrove v. Fanebust (1897) 10 S. D. 213, 72 N. W. 469. Tennessee.-Brown v. Phelon (1853) 2 Swan, 629; Bumpass v. Timms (1856) 3 Sneed, 459; Douglass v. Brandon (1873) 6 Baxt. 58 (general statement); Peevey V. Buchanan (1914) 131 Tenn. 24, 173 S. W. 447 (recognizing rule). See also Smith v. Parker (1896) Tenn. 49 S. W.

285.

Texas.-Wells v. Moore (1855) 15 Tex. 521; Muckleroy v. Bethany (1864) 27 Tex. 551; Richers v. Helmcamp (1878) 1 Tex. App. Civ. Cas. (White & W.) p. 373; Heath v. State (1883) 14 Tex. App. 213 (recognizing rule); First Nat. Bank v. Pritchard (1884) 2 Tex. App. Civ. Cas. (White & W.) p. 125; Kansas Mut. L. Ins. Co. v. Coalson (1899) 22 Tex. Civ. App. 64, 54 S. W. 388 (recognizing rule); Iowa City State Bank v. Milford (1917) Tex. Civ. App. —, 200 S. W. 883. See also Peveler v. Peveler (1880) 54 Tex. 53 (court, on inspection of bond, holding that burden of proving alteration was on party asserting it).

Wisconsin. Gordon v. Robertson (1880) 48 Wis. 493, 4 N. W. 579. See also Maxwell v. Hartman (1881) 50 Wis. 660, 8 N. W. 103 (only where instrument appears to have been altered that party offering it in evidence must offer explanation).

Wyoming. FIRST NAT. BANK v. FORD (reported herewith) ante, 1441.

It is probable that in some of the cases cited above the court used the term "burden of proof" in the sense merely of the duty of proceeding with the evidence to overcome an opponent's prima facie case, but no generalization on this point can be made as in other decisions; for example, in the reported case (FIRST NAT. BANK V. FORD) the term is used, more properly, in the sense of ultimate burden of 31 A.L.R.-92.

proof. The opinion contains a very clear and illuminating discussion of the question as to the party upon whom the burden of proof in this sense rests. Its conclusion that it rested upon the defendant, who asserted the alteration, was the result of its holding that the claim of alteration amounted to an affirmative defense and not merely to a denial of a fact asserted by the plaintiff; that is, that the instrument introduced by him was the defendant's act. The conflict as regards alteration, among the cases which distinguish between the different senses in which the term "burden of proof" is used, is to a considerable extent due to a difference of views as to whether the claim of alteration amounts to an affirmative defense or a mere negation of the claim of the party asserting the instrument, and this may be affected by differences in rules of pleading or by the method of pleading in the particular case. See infra, III.

When the defendant pleads an alteration in the instrument sued on, which is not apparent on the face of the instrument, he holds the affirmative of this issue, and the general rule is that one who holds the affirmative has the burden of proof; and this rule imposes no hardship on the defendant, for his affirmance of alteration affords a reasonable presumption that he knows by whom the alteration was made. United States v. Linn (1843) 1 How. (U. S.) 104, 11 L. ed. 64.

So, when the signature to a contract regular on its face is admitted or proved, the presumption arises that the writing was, when signed, in the form appearing at the time of its production in a proceeding to enforce it, and such presumption should prevail till overcome by clear and satisfactory evidence. Ripon Hardware Co v. Haas (1909) 141 Wis. 65, 123 N. W. 659, citing Maldaner v. Smith (1899) 102 Wis. 30, 78 N. W. 140.

And it was said in First Nat. Bank v. Liewer (1911) 109 C. C. A. 70, 187 Fed. 16, that when the fact is established by the admission of the maker, or by other conclusive evidence, that he signed a promissory note fair on

its face, which is owned by an innocent purchaser for value, the legal presumption arises under both the commercial and the criminal law that no one wrongfully changed it after it was signed; for all persons are presumed to be innocent until they are proved to be guilty, and the maker is presumably bound by his obligation as it reads.

And in Williamsburgh Sav. Bank v. Solon (1893) 136 N. Y. 465, 32 N. E. 1058, the court said: "Where the alteration is visible on the face of the instrument, the paper discredits itself, and the holder should explain. But where the change simply makes the bond perfect in accordance with its own express terms and apparent purpose, there is nothing for the holder to explain. The burden falls on the adversary to prove an alteration such as will affect the instrument, and he must show the facts on which he relies. That is both the reasonable and the settled rule." The case was one of alleged alteration of bonds by affixing seals.

Where the defense is a fraudulent alteration of the notes sued on, if they are fair on their faces, the court and jury are bound to accept them as they are produced, and the defendant who charges a fraudulent alteration after delivery, under the ordinary rules of evidence, has the burden of proving that charge. Wagler v. Tobin (1919) 104 Kan. 211, 178 Pac. 751.

Also in J. I. Case Threshing Mach. Co. v. Peterson (1893) 51 Kan. 713, 33 Pac. 470, the court said: "It is said that the note bore no evidence of alteration upon its face, nor anything that would raise a suspicion that it had been changed since its execution. If that be true, the production of the note with the defendants' signatures attached would be prima facie evidence that the instrument in all its provisions was genuine; and, if the defendants relied upon the defense of material alteration, the burden would be shifted to them to establish the same. The indications of subsequent alterations may be so obvious and suspicious in some cases as to bring discredit upon the instrument, and re

quire the party offering the same to account for the apparent changes. But, in the absence of suspicious circumstances, no presumption can be indulged against the genuineness of the instrument."

And in Roettger v. Rothermel (1923)

Mo. App., 251 S. W. 427, in which it was held not erroneous for the court to instruct the jury in effect that the burden of proof was on the defendant as to the alteration of the contract alleged by the defendant, and that she was required to show by a preponderance of the evidence that the figures, which it was alleged were subsequently inserted, were not in fact in the paper at the time she executed it, the court said: "Where, as here, the signing of the written paper is admitted and the sole defense sought to be made is that the instrument was altered in a material manner after the signing thereof, but where there is nothing upon the face of the instrument itself to show any alteration, the burden of proving by a preponderance of the evidence the fact of such alleged material alteration of the instrument rests upon him who asserts it; for the rule with reference to such written instruments is that the law will presume the honesty or integrity thereof until there is something to indicate the contrary."

The rule is laid down in McClintock v. State Bank (1897) 52 Neb. 130, 71 N. W. 978, that where the defense to a suit on a promissory note is that the same has been materially altered after its execution and delivery, the note itself not disclosing any evidence of such alteration, the burden of proof is upon the party alleging such alteration to establish the same by a preponderance of the evidence.

See, however, Ohio Nat. Bank v. Gill Bros. (Neb.) under III., infra, where the above case was distinguished on the ground that in it the defendant assumed the burden of proof by alleging the material alteration of the note as an affirmative defense.

The defense of fraudulent alteration of a note, regular upon its face, is an affirmative defense, which, like all such defenses, must be established by

the one who asserts it, by a preponderance of the evidence. Teske v. Baumgart (1916) 99 Neb. 479, 156 N. W. 1044. And see the reported case (FIRST NAT. BANK V. FORD, ante, 1441).

And in Conable v. Keeney (1891) 40 N. Y. S. R. 939, 16 N. Y. Supp. 719, the court said that the alteration of the note was an affirmative defense, and was to be established by the defendants, the parties who asserted the

same.

The doctrine that the burden of proof of an alteration asserted by the defendant is upon him is supported also by Kapp v. Levyson (1916) 58 Okla. 651, 160 Pac. 457, where it does not appear whether or not the alteration was apparent on the face of the instrument, the defendant pleading as a defense that the note while in the hands of the plaintiff had been materially altered by him by erasing the prefix "non" before the word "negotiable" appearing in the note, so as to make it appear negotiable.

And in Barker v. Stroppel (1910) 124 N. Y. Supp. 865, where suit was brought to adjudge fraudulent and void a purported renewal clause in a lease made by the plaintiff to the defendant, on the ground that it was fraudulently inserted by the defendant or his agent, after execution of the lease, the court said that the burden rested on the plaintiff to establish by a fair preponderance of the evidence the proposition that the disputed clause was not a part of the original lease, and that the lease was altered after its execution; and it was held that the plaintiff had failed to sustain this burden of proof.

In Riley v. Riley (1900) 9 N. D. 580, 84 N. W. 347, in which it was contended that the deed bore evidence on its face of alteration after execution and delivery, the court said that, after examination of the instrument, it could not, unaided as it was by the testimony of experts in handwriting, say that the same appeared on its face to have been altered after its delivery; and it was held that where one seeks to annul a deed of conveyance, and alleges as ground of relief that the deed has been materially altered after its execution, the burden to show such

alteration rests upon him, and that he must make out his case by evidence which is clear, strong, and convincing.

And in Franklin v. Baker (1891) 48 Ohio St. 296, 29 Am. St. Rep. 547, 27 N. E. 550, in which the court said that it was not clearly apparent from the face of the note whether it had been altered, the court laid down the rule that where it is claimed by the defendant, in a suit upon a promissory note or similar instrument, that the note has been altered since its execution, the burden is upon him to prove that it was so altered.

So, in Jackson v. Day (1902) 80 Miss. 800, 31 So. 536, the court held that as it was not plainly certain, upon inspection of the note in suit, that it had been altered since its execution, the burden of proof to show such alteration was upon the parties asserting it.

And the rule requiring the holder of a negotiable instrument to prove that an alteration apparent on the face of it was made before the contract was signed, or, if afterwards, that the alteration was made by the consent of the maker of the instrument, was held in Ellison v. Mobile & O. R. Co. (1858) 36 Miss. 572, not to apply where it was merely probable, from the face of the instrument, that an alteration had been made, it being essential to the application of the rule that it must plainly appear from the face of the instrument that there had been an alteration,-in other words, it must be manifest to the inspection of the jury that an alteration has been made. The court said that the consequences of an alteration, apparent from the face of the paper, are so serious to the holder, especially when he has no notice by pleading or otherwise that he will be required to show its fairness, that the fact upon which the presumption of unauthorized or fraudulent alteration is founded should not depend upon mere probability, for that would be to found one presumption upon another, and to presume fraud upon mere probability.

As is indicated in the reported case (FIRST NAT. BANK v. FORD, ante, 1441), there are authorities which seem to be in conflict with those above cited, and