Howlett v. Bell ( 1893 )

Gilfillan, C. J.

Action on indorsements upon promissory notes. The complaint sets out the notes, but not the indorsements, and as to them alleges generally that the defendants indorsed the notes. The answer denies that the defendants indorsed the notes, except that they indorsed them “without recourse.” When the notes and indorsements were introduced on the trial it appeared that the words “without recourse” were in the latter, but that lines with pen and ink had been drawn through those words. The defendants were permitted against the plaintiff’s objection to prove that when the indorsements were executed the words “without recourse” were in them, but that the lines through the words were not there. When the lines were so drawn does not appear, except that it was not at or before making the indorsements.

The only point of appellant is that evidence that the lines were not there when the indorsements were made was inadmissible without an allegation in the answer that the alterations or attempted alterations were made after the indorsements. Of this it is enough to say that by denying such indorsements as the complaint alleges, and alleging just what indorsements defendants did make, an issue was formed as to the character of the indorsements when executed by them. They were not bound to know or anticipate that an alteration had been made, and to plead when it was made. Having pleaded what indorsements they made, they might, when plaintiff offered evidence of different indorsements, meet that by showing that when made they were as alleged in the answer.

Order affirmed.

(Opinion published 53 N. W. Rep. 1154.)