Coit & Co. v. Churchill & Co. , 61 Iowa 296 ( 1883 )

Peck, J.

— I. The plaintiffs introduced in evidence a written order signed by defendants, purporting to direct the shipment to them by plaintiffs of twenty kegs of paint.- Thereupon defendants amended their answer, alleging that the order had been fraudulently altered, so as to read twenty kegs instead of two, by the addition of a cipher to the figure 2. Defendants were permitted to prove that the'order was made out by the traveling salesman of plaintiffs, and, when signed by defendants, did not contain the cipher following the figure 2, and that defendants in fact ordered but the two kegs, and never ordered twenty. The evidence tending to show that the quantity purchased was objected to, on the ground that defendants thereby sought to contradict and vary the written order. "We think the evidence was properly admitted.. Defendants charged an alteration of the order; and proof of the quantity actually ordered had a bearing upon this charge. If a less quantity was actually ordered and agreed upon, this would iu some manner support other evidence tending to show the alteration. The evidence did not tend to vary or contradict the writing, but to defeat it. Oral evidence is always competent to impeach the validity of an instrument on the ground of a fraudulent alteration. These are familiar rules that do not here demand the support of authorities.

II. The court directed the jury that they should find their verdict according to the preponderance of the evidence. Plaintiffs’ counsel insists that, to justify’a verdict for defendants, a greater quantity of evidence in their behalf than mere projionderance was required. lie insists that the evidence should be clear and satisfactory; and this it must be, under the rule requiring no more than a prejtonderanee. As the law requires, no greater quantity, wheu that measure is reached it must be regarded by the jury as clear and satisfactory, for it is the precise quantity prescribed by the law. When a fraudulent and criminal act-is’pleaded in a civil action, it may be established by a mere preponderance of evidence. Welch v. Jugenheimer, 56 Iowa, 11. No greater qiiantity of evidence is required to establish .the fraudulent alteration of an instrument of writing.

- III. Counsel for plaintiffs insists that the instructions given to the jury rested the’ decision of the case upon the evidence showing the transaction and agreement of the parties before the written order was signed.' The. instruction expresses the-thought- that the -déeision of the case depends wholly upon; the quantity of paint' actually ordered by defendants. The reference in the instruction’is clearly'to the written order; to our minds,The langtiage'means-that if the jury believe there was.an alteration'of that instrument, they must find for defendants, and if they-do not'find such alteration, their verdict should be for plaintiffs.

■. IY. ’ It is urged that the evidence fails to support the verdict.. We think differently. Upon the controlling point of’ the case,’whether the order had been altered after .it was signed by, defendant, there was ’a conflict, and it- cannot- be claimed that the verdict'of .the jury-was not-the expression of an intelligent and correct exercise of the. discretion conferred upon them by the law. The judgment of the circuit court must be ’

Affirmed.