Conkling v. Olmstead

63 Ill. App. 649, 1895 Ill. App. LEXIS 994

• Court: Appellate Court of Illinois
• Decided: December 6, 1895
• Status: Published

Opinion

Mr. Justice Boggs

delivered the opinion oe the Court.

The alteration made no apparent change in the face of the note. The plea did not allege any specific alteration, and while the current of authority is, proof an instrument has been altered may be received under a plea denying generally its execution, yet in such state of pleading the plaintiff, if the alteration is not so apparent upon the face of the instrument as to demand explanation, may, upon proof the signature is that of the defendant, introduce the instrument in evidence, leaving it to the defendant to disclose by testimony the change.

The burden of proof sustaining the instrument against the charge it had been changed, rests, upon the whole evidence, ■with the plaintiff.

Therefore the court did not err in allowing the plaintiff to introduce the note after proof that it bore the genuine signature of the defendant was produced.

The evidence and the instructions presented but one question to the jury, whether the alteration had been made by authority of the appellant. The evidence upon that issue was conflicting and its determination depended most largely upon the weight and credit accorded the testimony of the appellant and Culp, the payee of the note, who testified in direct opposition to each other.

Therefore the judgment, unless something exceptional appears to take it out the well settled rule governing in such state of case, must be affirmed. It is urged the verdict, which denied the allowance of interest, is radically inconsistent with the view the jury determined from the evidence the change was authorized.

But that was the only issue raised by the pleading or the evidence, and the court expressly directed the jury they should find for the plaintiff if they determined the change was made by authority, and should find for the defendant if the change was unauthorized.

They refused to find for the appellant but found against him.

The verdict may be illogical, but it is so only because the appellee was not awarded the full amount of damages that ought have followed the finding. The evidence introduced to show authority to alter the note disclosed partially the consideration therefor, and this no doubt induced the jury to refuse interest.

There is no error to which appellant may object. Judgment affirmed.