Welch v. Coulborn

8 Del. 647

• Court: Superior Court of Delaware
• Decided: July 5, 1868
• Status: Published

Opinion

By the Court.

Although there have been varied and conflicting decisions on this subject both in England and some of the States in this country, and which are referred to in the notes to the section just cited from 1 Greenl. PJv. the rule is now well settled as stated by him in that section, to the effect that generally, if nothing appears to the contrary, the alteration will be presumed to be eotemporaneous with the execution of the instrument or paper. But if any ground of suspicion is apparent upon the face of it, the law presumes nothing, but leaves the question of the time when it was done, as well as by whom done, and the intent with which it was done, as matters of fact to be ultimately left to the decision of the jury. The matter must, therefore, be left to the jury, and the paper is admitted in evidence.

Several witnesses were then examined on behalf of the parties respectively, and upon inspection of the pa per expressed contrary opinions in regard to the alteration, and whether it was, or was not, in the handwriting of the defendant.

Causey, for the plaintiff.

All the receipts for payments made by the plaintiff during his term of office to the defendant were in evidence, and all of which were conceded to be genuine, except the one in question, and were properly and necessarily in the case under the inquiry propounded by the rule; and as they were numerous and related to similar official transactions between the parties for more than a year, the jury might compare the latter with any and all of them, and from such comparison judge for themselves whether it was not as genuine as the rest. 1 Greenl. Ev. sec. 578. And asked the court to charge the jury that if they should be satisfied from all the evidence before them that the paper in question was in fact the' receipt of the defendant for the amount mentioned in it, the plaintiff would be entitled to recover without proving that a duplicate thereof was taken at the same time and deposited in the office of the Clerk of the Peace of the county in ten days thereafter.

Saulsbury, (Cullen with him).

If, on the production of a receipt or other paper writing in evidence, it appears to have been altered, it is incumbent upon the party offering it to account for and satisfactorily explain such appearance. Every alteration on the face of a written instrument detracts from the credit of it and renders it suspicious, whenever the effect of the alteration is such as to render it more beneficial to his interests in the case; and that suspicion, the party offering it in such a case, was ordinarily-bound to remove. If it is noted on the paper as an alteration made before the execution of it, or if it appears in the same handwriting and ink as the body of the instrument, that will be sufficient to account for it. 1 Greenl. Ev. sec. 564. 9 Cow. 125. 1 Met. 221. 35 E. C. L. B. 377. 2 Wend. 555. But no evidence whatever had been offered by the plaintiff to explain or account for such a great change in the amount of the receipt; and the jury would be able to see for themselves that the alteration was not in the same handwriting, nor in the same ink as the rest of the receipt.

Moore, replied.

The Court, Gilpin, C. J., charged the jury.

That as there appeared to be no substantial difference of opinion between the counsel as to any principle of law involved in the case and respectively alluded to by them, he would only say that the law applicable to the facts of the case had been correctly stated on both sides; and as it was apparent upon the face of the paper that an alteration had been made in the part of it particularly referred to, it would be for them to decide from all the evidence in the case, whether it was, or was not, in the handwriting of the defendant, and for that purpose they might in considering the testimony of the witnesses on that point, also compare the handwriting in which it had been made, with the hand writing of the receipts which they had before them, and which were not disputed, but admitted to be genuine receipts of the defendant. But if they should be satisfied that it was in the hand writing of the defendant, then it was not material when it was made by him, whether before or after he had signed it. If, however, they should be satisfied that it was not in the hand writing of the defendant, then it was incumbent upon the plaintiff to prove to their satisfaction that it was made with the knowledge and consent of the defendant. For if it was not made by the defendant, or was not made until after he had signed and delivered the paper to the plaintiff, it would be such a suspicious alteration as would impose upon the plaintiff the obligation of removing the suspicion by satisfying them that it xyas, nevertheless, done with the knowledge and consent of the defendant. But should they be satisfied that the alteration was in the handwriting of the defendant, or if not in his handwriting, that it was made with his knowledge and consent, either before or after he signed the paper, (for his signature to it is not denied,) it would not he necessary for the plaintiff also to prove that he delivered a duplicate of it at any time thereafter to the Clerk of the Peace of the county, in order to entille him to a verdict in this case.

The defendant had a verdict.