Towles v. Tanner

21 App. D.C. 530, 1903 U.S. App. LEXIS 5505

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 7, 1903
• Docket: No. 1271
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

There are thirty-seven assignments of error in this case. This is a very large number, but there is apparently some justification for it in the fact, of which we were advised in argument, that the trial extended over five weeks. It is very apparent from the record that this extraordinary prolongation of the trial of what would seem to be an apparently simple issue was due in great measure to the introduction of useless or irrelevant testimony and to the discussion attendant upon the attempt to introduce such testimony.

The promissory note here in suit is one of a number of .notes mentioned in the case of Ofenstein v. Bryan, 20 App. D. O. 1, as alleged to have been materially altered by Gilbert B. Towles, one of the parties to them, to whom they had been delivered for negotiation, after indorsement thereof by the other parties. If the record before ns be correct — and we have not been advised to the contrary; in fact, the record bears ont the statement — there is here presented the apparently extraordinary case of an alteration of a piece of negotiable paper, not by the raising, bnt by the diminution, of the amount payable. The note, as set forth in the plaintiff’s-declaration, calls for the payment of $1,000; the testimony of the expert witness for the defense, which is tbe only testimony specifically to the matter of alteration in the body of the note, tends to show that the original amount was $1,100. Apparently the explanation of the anomaly is in another portion of the testimony for the defense, which tends to show that an original and probably genuine note for $1,100' had previously been issued and discounted at some bank, and that after having been paid and taken up by the defendant-Gilbert B. Towles, it was improperly altered and reissued by him to the plaintiff in the present case, the appellee here.

The record also presents the unusual feature of a long and labored effort on the part of the plaintiff to prove, what he-was not required to prove at all, so far as the record before us discloses, the consideration of the note in suit. That there are circumstances under which a plaintiff may be required in the first instance and in his testimony in chief to go into the question of the consideration given for a promissory note may be conceded, but this does not appear to be such a case. It has been the general law, both in England and America, for two hundred years- — -that is, since the statute of 3 and 4 Anne, chap. 9, relating to promissory notes — and this general law has been embodied in the act of Congress of January 12, 1899 (30 Stat. 785), relating to negotiable instruments; and again in the new code of law for the District of Columbia, into which that act of Congress has been incorporated as sections 1304 to 1493, both inclusive, that “ every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.” Why, therefore, there was so strenuous an effort on the part of the plaintiff to prove that value had been given for the note is not quite apparent. It was for the defendants to show affirmatively that no consideration had been given, and it would then have been open to the plaintiff to rebut the testimony to that effect on the part of the defendants. Proof of genuineness of the signatures and proof of notice of protest would have constituted a sufficient prima facie case against the appellants.

It is true that in his affidavit of defense the defendant Bryan alleged want of consideration for the note. But this did not impose upon the plaintiff the burden of proof of value given; it did not change the rule of law. Nor did the allegation of forgery made in that affidavit and in the other affidavits of defense change the rule of law. Forgery is matter of defense. It is not required in the first instance to be disproved by the plaintiff because the defendants have alleged it in their plea or affidavit.

It is true that in the case of Ofenstein v. Bryan, to which we have already referred, we held that “ the weight of authority, as well as reason, supports the proposition that, where the alteration is material and such as reasonably to excite suspicion, it is incumbent upon the party offering it in support of his claim thereunder to give some evidence tending to explain its condition.” In that case a promissory note was offered in evidence, which upon its face and to the naked eye showed alterations to have been made in it, and the trial court, upon inspection of it, held that there were such visible and patent alterations, and therefore refused to admit it in evidence until the plaintiff offered some testimony tending-to explain its condition. The note was again produced and inspected in this court on the appeal, and we upheld the ruling of the trial court.

No such case is presented by the record now before us, and if there were such case, it would not have required proof of value given by the plaintiff or proof of collateral matters entirely outside of the note. What is required is some testimony in explanation of the condition of the note, such as that it was in its present condition when it came into the hands of the plaintiff, and that having made inquiry of the defendants he was assured by them that the note was all right. Only a small part of the plaintiff’s testimony in chief conforms to this requirement. There is no copy of the note in the record; and if the alterations were visible and palpable, and such as reasonably to excite suspicion, we are not informed how they did appear. We are not informed by the record that the note was presented to the court for inspection, and that the court thereupon required explanation of the alterations. When it was actually offered in evidence, it was admitted without objection on the part of the defendants.

But assuming that the note on its face was free from suspicion and that all this testimony in regard to value may be regarded as surplusage which did not injure anyone; or assuming, on the other hand, that the note on its face was such as reasonably to excite suspicion, and that the requirement of explanation by the plaintiff was sufficiently gratified by the proof that was given of acknowledgment of its genuineness by the appellants — and undoubtedly that acknowledgment was sufficient, if proved — yet we are clearly of opinion that the testimony in regard to the Gettysburg adventure was wholly irrelevant, and should not have been admitted. Whatever may have been the fact, it is not shown here, nor is there any testimony tending to show that the proceeds of this note went into that adventure. It may well have been that they did, but this is only an inference. ' There is no testimony whatever that such was the fact. And if they did go into that adventure, they may have gone for the personal benefit alone of Gilbert B. Towles, as is suggested in the testimony of Henry O. Towles, in order to help him to pay for his stock. So far as the defendant Bryan is concerned, there is no testimony to show that he had any pecuniary interest whatever in the Gettysburg enterprise. Consequently, whether the money went into it or not is of no relevancy so far as Bryan is concerned.

The declaration, it will be remembered, had a special count on the note and the common counts. Plainly any testimony in regard to the Gettysburg adventure is irrelevant to the issue upon the special count, and the common counts have been abandoned by the plaintiff. They have not been withdrawn; nor has any testimony applicable to them, if any, been withdrawn. An instruction was given by the trial court to the jury at the instance of the defendants to the effect that there was no evidence in the case upon which the jury could find a verdict against any of the defendants upon the common counts. In this instruction the plaintiff acquiesced; he made no objection and reserved no exception to it. And in the argument before us it was announced by counsel for the appellee thait the common counts were eliminated from the case. The testimony in regard to the Gettysburg transaction therefore remains as applicable only to the special counts, if it has any application at all. If it has no application at all, that, of course, means that it is wholly irrelevant. What application it can have to a suit against the indorsers of a promissory note, as such, we fail to appreciate. ' There is absolutely no connection whatever between the two things. The issue was not as to money had and received by the defendants for the use of the plaintiff, but as to the execution of a promissory note, for which it is practically conceded the appellants received no money. And the genuineness of the ■signatures being admitted, that issue resolved itself into the ■question of forgery or no forgery, and ultimately also into the ■question of acknowledgment or no acknowledgment of the note by the defendants. That Gilbert B. Towles may have been the agent of the other parties in the Gettysburg adrenture, and their agent to raise money for that adventure, can have no bearing whatever on the question of forgery or subsequent acknowledgment of the note. Proof of agency in the Gettysburg transaction is no proof of agency to, alter notes at will. They are very different things. And, of course, such agency in the Gettysburg transaction has no bearing on the question of the acknowledgment of the integrity of the note by the appellants, Henry O. Towles and Bryan.

It is impossible to say how far this testimony in regard to the Gettysburg business may have influenced the jury. That it was intended to influence them is beyond question. The large space given to it in the record, and the’large space which we are informed was given to it in the argument before the jury, evidences the-fact that it was greatly relied on by the plaintiff. Regarding it as irrelevant, we cannot regard it as being without injury to the appellants. While the plaintiff’s case, as developed in the record before us, might well have been made out without this testimony, we cannot say that the jury were not influenced by it in the rendition of their verdict.

We must regard the admission of this testimony as error for which we must reverse the judgment.

2. It is unnecessary to consider the other a'lignments of error. One or two of them, it may be noted, have no foundation in the record. They are based upon questions which were not answered. As to those which have reference to the admission of testimony other than concerning the Gettysburg transaction, -it would subserve no good purpose to review the questions raised. The testimony may be different on the new trial which must be ordered. In view, however, of the fact that the propositions of law contained in the instructions given or refused by the trial court are likely to be again brought forward upon such new trial, and therefore it is expedient that the law of this case should now be settled as far as it is possible for us here so to do, especially inasmuch as we are advised that there are numerous other causes pending in the trial court which await the disposition of this present case, and which should not be permitted to block the administration of justice by inordinately protracted trial, we deem it proper to express our opinion of the instructions that were actually given to the jury by the trial court, and to formulate them in more appropriate form, as we believe they should be formulated. For although the instructions as given by the court are in our opinion substantially correct and correctly state the law applicable to this case, there is in them much unnecessary verbiage and repetition and some inaccuracy of language, due undoubtedly to the haste of their preparation by counsel at the trial table. They might well be abbreviated, condensed, and simplified; and so simplified they might be stated in the following terms:

1. There is no evidence in the present ease upon which a verdict can properly be rendered against the defondants, or any of them, upon the common counts.

2. If the note in suit has not been materially altered at any time; or if it has been materially altered, but before indorsement thereof by the defendants, the plaintiff is entitled to recover, notwithstanding such material alteration.

3. If the note in suit was materially altered after the indorsement thereof by the defendants and without their authority or consent, and without ratification thereof by them after such alteration, the plaintiff is not entitled to recover, and the verdict of the jury should be for the defendants. But if there was no such alteration after indorsement; or if there was such alteration, and it was with the knowledge or consent of the defendants, or it was ratified by the defendants with a view to the negotiation of the note, the plaintiff is entitled to recover.

4. If the note in suit was fraudulently altered after indorsement thereof by the defendants, and yet prior to its negotiation to the plaintiff and with a view to such negotiation, or to the negotiation of it to any other person, was exhibited to the defendants in its altered condition, and they, with full knowledge of the alteration or with the means of knowledge then in their possession, declared the note to be valid as it then was, and such declaration was communicated to the plaintiff, and the plaintiff was thereby induced to accept the note, the plaintiff is entitled to recover; otherwise, however, the verdict should be for the defendants.

5. If upon the face of the note it appears to have been materially altered, and the alteration is such as reasonably to excite suspicion, it is incumbent upon the plaintiff to explain its condition. But if the alteration is not so apparent on the face of the paper as reasonably to excite suspicion, which is a question for the court in the first instance, then it is incumbent on the defendants, as matter of defense, to show the alteration. If the defendants have shown such alteration, the burden of proof is thereupon shifted to the plaintiff to show that such alteration was made before the indorsement of the note by the defendants; or that, if it was made after such indorsement, it was made with the knowledge or consent of the defendants, or was ratified by them with full knowledge thereof or with the means of knowledge in their possession, or that the note so altered was declared by them to be good and valid with a vieiv to its negotiation.

As already stated, only two of the four defendants in the court below have appealed. There was no reason for the defendant Robbins to appeal, for the verdict and judgment were in his favor. Nor, for a very different reason, was there any ground for appeal on the part of Gilbert B. Towles. The judgment, therefore, as to these two must stand. But for the error referred to in the matter of the admission of testimony in regard to the Gettysburg transaction, the judgment against the defendants Henry O. Towles and O. C. Bryan, the appellants here, must be, and it is hereby, reversed with costs.

The cause will be remanded to the Supreme Court of the District of Columbia, with directions to award a new trial. And it is so ordered. Reversed.