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Denny v. Darraugh

212 Ky. 655
CourtCourt of Appeals of Kentucky
DecidedOctober 27, 1925
StatusPublished

This text of 212 Ky. 655 (Denny v. Darraugh) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Denny v. Darraugh, 212 Ky. 655 (Ky. Ct. App. 1925).

Opinion

Opinion op the Court bt

Judge Sampson

Reversing.

Three separate defenses — non est factum, want of consideration and material alteration — were pleaded in answer to an action on a $2,500.00 note brought by appellee, Darraugh, against Denny as executor of the estate of Mrs. Nancy A. Darraugh, deceased wife of appellee, J. C. Darraugh. The jury found and returned a verdict for Darraugh, the holder of the note, and the executor appeals. This case has once before been here. See opinion in 196 Ky. 614, where the facts are recited and the law of the case discussed. There it was said:

“On the question of non est factum, the burden of proof was on plaintiff. Thompson v. Eversole, 162 Ky. 836, 173 S. W. 165. On the questions of no [657]*657consideration and material alteration, the burden was on defendant. Bronston’s Admr. v. Lake, 135 Ky. 173, 121 S. W. 1021. However, when plaintiff proved his wife’s signature to the note, he made out a prima facie case that the whole body of the note was her act. Simpson v. Davis, 119 Mass. 229; 20 Am. Rep. 324. It then devolved upon defendant to show from the appearance of the instrument itself, or otherwise, that it had been materially altered, Davis v. Jenney, 1 Metcalfe (Mass.) 221. When this was done, the burden shifted to plaintiff to explain how and when the alteration was made. Elvert v. McClelland, 8 Bush 577; Frazer’s Admr. v. Frazer, 13 Bush 397; Wild v. Ormsby, 6 Cush 314. ’ ’

The general rule is to the same effect, as indicated by the following text from 2 C. J. 1268:

“When an alteration is once made to appear, either by reason of a suspicion raised from the appearance of the instrument, or when such suspicion is raised or the alteration is proved by extraneous evidence, the party producing the instrument then has the burden of explaining the alteration by showing that the change was made under circumstances rendering it lawful, or under circumstances which would not preclude a recovery by him, as by showing that the alteration was made with the consent of or by the party bound by the writing, or that it was subsequently ratified by him, or that it was made by a stranger to the contract. In such cases the burden may be said to be shifted, or that the opposite party is under the necessity of meeting a prima facie presumption raised against the instrument.”

The note was written upon a printed form and admittedly bears the signature of Nancy A. Darraugh, but appellant insists that the note is a forgery brought about by the appellee, Darraugh, or some one in his interest, obtaining an old note signed by Nancy A. Darraugh, and erasing all pencil writing from the printed form save the signature “Nancy A. Darraugh,” and then filling the blanks with an indellible pencil with words which constitute, when taken in connection with the printed form, a promissory note for $2,500.00, dated November 15, 1919, payable to appellee, J. C. Darraugh. The original note is in the record. It is badly mutilated, as is shown by the following photograph:

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Related

Luce v. Hadley
119 Mass. 229 (Massachusetts Supreme Judicial Court, 1875)
Elbert v. McClelland
71 Ky. 577 (Court of Appeals of Kentucky, 1871)
Bronston's Admr. v. Lakes
121 S.W. 1021 (Court of Appeals of Kentucky, 1909)
Gardner v. Alexander
169 S.W. 466 (Court of Appeals of Kentucky, 1914)
Thompson v. Eversole
173 S.W. 165 (Court of Appeals of Kentucky, 1915)
Sandy Valley & Elkhorn Railway Co. v. Moore
193 S.W. 1020 (Court of Appeals of Kentucky, 1917)
Combs v. Combs
194 S.W. 790 (Court of Appeals of Kentucky, 1917)
City of Pikeville v. Dils
194 S.W. 918 (Court of Appeals of Kentucky, 1917)
Darraugh v. Denny
245 S.W. 152 (Court of Appeals of Kentucky, 1922)
Blatz Co. v. Stivers
255 S.W. 699 (Court of Appeals of Kentucky, 1923)
McKinney v. Knapp
258 S.W. 314 (Court of Appeals of Kentucky, 1924)
Frazer's Adm'rs v. Frazer
76 Ky. 397 (Court of Appeals of Kentucky, 1877)

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Bluebook (online)
212 Ky. 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denny-v-darraugh-kyctapp-1925.