Lawson v. Meffert , 289 Mo. 337 ( 1921 )

The plaintiff filed a petition in the Probate Court of Jackson County, for the allowance of a claim against the estate of Joseph F. Meffert, based on three promissory notes alleged to have been made by the latter to the plaintiff. A verdict was rendered by a jury in favor of the plaintiff, from which an appeal was perfected to the circuit court. Upon a trial in that court a judgment was rendered May 2, 1919, in favor of plaintiff, from which the defendant appeals.

The petition on which this action is based is in three counts: The first is on a note made to plaintiff by Joseph F. Meffert, on November 14, 1901, for $2950 with the following indorsement on the back of same: "By cash, October 24, 1911, on within note $50." The second is on a note made to plaintiff by Joseph F. Meffert, November 14, 1902, for $500, with the following indorsement on the back of same: "By cash, October 21, 1912, on within note $10." The third is on a note made to plaintiff by Joseph F. Meffert, June 8, 1913, for $200. The last mentioned note is conceded to be valid and is not contested.

Thos. A. Hardwicke, a barber, testified for the plaintiff as to his familiarity with the handwriting of the deceased; that he had known the latter for about twenty years and had frequently seen him write; that he was careless in his writing; that he had none of his writing at the time, but had formerly had one or two prescriptions given him by the deceased, who was a doctor, and that he got one of these from a drug store where he had left it and it was exhibited to the jury; that this prescription was in the handwriting of the deceased; witness then identified the indorsements on the back of the notes as being in the same handwriting.

William Meffert, a brother of the plaintiff and of the deceased, testified to his familiarity with the handwriting of the latter; that the notes sued on and the indorsements thereon, were, in his opinion in the handwriting of the deceased. In response to an inquiry as to whether he had had a discussion with the deceased a few hours before his death, concerning amounts owing on notes signed by the deceased, he replied that the deceased said: "I have fixed his notes and he will get his money." That this was practically all he said in connection with that matter. Further, that the "hundred and twenty-nine" on one of the notes was in Dr. Joseph Meffert's handwriting.

On cross-examination this witness stated that except casually on two or three occasions he had not seen the deceased for about twenty-five years; that when the daughter of the deceased sent the witness word that her father was dying, a day or two before his death, he at first refused to go to see him, but finally went; that the deceased was not conscious when the witness first saw him, but that he brought him to consciousness. Continuing, the witness said: "I say he was conscious and I brought him there purposely. He was unconscious, he was under the influence of hyocene, catcine and morphine and they had been doping him with one shot right after another until I arrived when I changed that formula. I never saw him for probably two hours after I got there, until he became conscious and then they asked for me to be admitted. I treated him, after I arrived, to restore consciousness. He was really muddled from hyocene, what we call a mild delirium, due to the action of the drug; he was not normal when I got there. In two hours after, he knew people. He was still partially conscious, practically you might say, in a sub-conscious state, under the influence of a drug. I simply withdrew that, that was early in the evening, after my arrival about ten o'clock as I remember, I saw him about midnight, or possibly earlier, I cannot say the exact hour. I stopped the administration of the drug, he talked to me in the morning about eight o'clock, and died about five that evening. I was with him that morning about three-quarters of an hour; I saw him again, I was right with him when he died. He was not conscious all the time. He became conscious in the afternoon, about two or three o'clock, may be four. The coma deepended until he became absolutely unconscious.

"There is no scratching or erasure on the $500 note that I can see. The handwriting on the back is Dr. Meffert's handwriting — the indorsement. So far as my judgment is concerned, I would say absolutely so. My reason, is familiarity with his handwriting; that I haven't seen it would make no difference. You get an impression of this case, don't you? You know that as well as I do and to show you a similarity in that letter, this front part of the letter is one of the letters I refer to. This is one of the letters I found at home among other letters and I picked that up to compare this with your notes at the other trial; that is the reason I had this letter in my possession." There were two letters. Another letter was exhibited in regard to which the witness says: "That is also my brother's handwriting, that was written long years ago, probably twenty or twenty-five years ago." Then follows a long statement by the witness wholly irrelevant as to the nature of his personal relations with the deceased. On re-direct examination the witness said: "That note handed to me appears to have scratches on it, also this one, is certainly with those that are scratched. The word ``May' is written under the word ``June' in pencil on the $200 note. I cannot make that out, there is some writing there under "2," the word June has been written over that. It appears there under the words ``Chas. Meffert.' There has been some writing there that has been scratched out and in the $200 note. I did not visit with my brother, the Doctor, Joseph Meffert, in my mother's home when I went to Emporia; we never met there." On further cross-examination, the witness said: "I asked him (deed) in regard to Charley's note; he remarked, ``These notes were all right and would be paid.' That was the substance of what I testified to in the other trial."

Thos. A. Hardwicke, recalled for further cross-examination, said: "I never looked for any more prescriptions or receipts, my business is that of a barber; I have nothing to do with handwriting, only just our laundry and writing laundry names, different names. I am no expert; I saw the Doctor's handwriting on these prescriptions, which I turned into the druggist and I had two receipts, and that is all the familiarity I had with his handwriting."

The wife of the witness Hardwicke, testifying for plaintiff, said: "I knew Dr. Joseph F. Meffert in his lifetime, twelve or fourteen years; I knew his brother Charley (the plaintiff) and Charley's wife: I heard some talk of a trade between Dr. Joseph Meffert and his brother Charley, for real estate in Kansas City. I took two or three trips with my sister-in-law to look at places. After we had looked at two or three places, the Doctor said, ``Well, if you want the property I will see that you get it. I owe Charley between thirty-six and thirty-seven hundred dollars on these notes and the trade will more than pay for the property.' I know the handwriting of Dr. Joseph Meffert, the $3674 note dated July 26, 1915, payable to Mary Meffert is in Doctor Meffert's handwriting and so is the note of September 6, 1915, $2000, payable to Mary Meffert, and the $2950 note of November 14, 1901, payable to Chas. Meffert. In my judgment the words ``twenty-nine hundred' are in Dr. Meffert's handwriting, and so is the indorsement. On the $500 note, 1902, the words ``by cash, October 21, 1912 on within note $10' in my opinion, Doctor Meffert wrote those words. In my opinion Dr. Meffert wrote the figures ``2-15,' and signed his name on the receipt for $10, December 4, 1915, reading: ``Received from Pipps Taylor, rent 3602 East 15th, till December 1, 1915, Joseph F. Meffert.' I am the wife of Mr. Hardwicke; my husband's sister is Charley Meffert's (the plaintiff's) wife. I have talked with Dr. Meffert; he said he owed Charley some money and would pay it; he said he owed between thirty-six and thirty-seven hundred dollars, with interest. If they did not get the amount I stated in my testimony at the former trial, that is not my fault. I remember it, because the Doctor said it at my house." Cross-examined as to the appearance of the faces of the notes, the witness found no evidence of any erasure or other indications of a change in the note since it was originally written. Witness has had no experience in the matter of handwriting, or the comparison of same.

A Mrs. Baker testified: "I am the sister of Dr. Joseph and of Charley and William Meffert; I have lived in Liberty practically all my life. I have seen my brother, Dr. Joseph Meffert, sign different papers; I think I know his handwriting. My opinion is that the $2,000 note, payable to the order of Mary Meffert, is in his handwriting. In the last five or six years before his death, I saw him do writing very little. He did not do any writing at our home at all. Only if he wanted a little change from ma, he would make a little note and sign it to her. That is all the writing he ever done — he never gave me a line; I never had any business transactions with him; the only ones I ever saw were some he gave my mother." Disclaiming any knowledge of the handwriting of the deceased, other than as indicated, the witness said: "As far as his name to the notes are concerned, I think he wrote his name. That looks, to my opinion, like his writing in the body of the note, the words ``twenty-nine hundred,' and the figure ``2.' Of course, that may be his writing or may not; of course, I can't tell. I didn't see him do it. I don't know whether it is or not. I signed the paper at Mr. Lawson's office, saying I knew nothing about this case. He did not show me the notes. I told him I didn't know anything about the notes. I told him I had not seen the notes. I have not seen enough of the Doctor's handwriting to be able to tell about his signature." She could not remember to have heard the Doctor say anything about my indebtedness to his brother Charley. "I never spoke to him about his business at all. Of course, I know that you know that he owed Charley some money. I can't just remember, it was probably eighteen or nineteen years ago, it was a long time ago since I heard from any source he owed Charley." This was all the evidence for the plaintiff.

The testimony for the defendant, was as follows:

John S. Major, president of the First National Bank of Liberty, testified as follows: "I am in the banking business: I have been for twenty-two years. I was acquainted with Dr. Joseph Meffert in his life time. He was a customer of our bank when I came there in 1897; he had been before, but I don't know how long. He carried an account there up until the time of his death, and I had checks often. I became familiar with his handwriting. It is a part of my business to familiarize myself with handwriting, as an active official of the bank. The indorsements on the back of the two notes, the one for $500, and the other for $2950 are, in my opinion, not in the handwriting of Dr. Meffert. Looking at the word ``hundred,' on the note for $2950, it appears that there has been a line drawn thereon and extended out to the word ``dollars' and the line erased and the word ``Hundred' written over it. There is a character joining the top of the two strokes, forming the letter ``H,' in the word ``Hundred,' that is the same character as the ``' out at the end of it. Also at the end the ``100' under the line is printed and the ``50' is written over, as ``50/100.' If the line was drawn from the ``twenty-nine' it would read ``twenty-nine: fifty.'

"In the $500 note, the ``2' figure in 1902, shows to have been written over an erasure. You cannot make out distinctly what is under there; it looks like it might be a ``1,' but I am not sure about that, but the ``2' has evidently been written over the other, with a different colored ink. One has turned brown and the other, the ``2,' in black ink, has not turned brown. The date seems to me to originally have been 1901. There is a payment by cash, October 21, 1912, on the note for $10.' I am familiar with Doctor Joseph's signature. That is his signature on this note. Doctor Meffert was a careless man in his way of writing." Having read the face of the $200 note, conceded to be genuine, the witness stated: "This reads ``Two Hundred' with dollars and then interest; very carelessly and loosely drawn. It is plain that the word ``May' was erased and June written over it on this note, and that the handwriting is that of Dr. Meffert, and the ``Two Hundred' is written over the erased word "received," at least, that is what the face of the note indicates. There seems to have been an erasure where the name of ``Charles Meffert' now appears in the note." The witness is here examined at length about the distinguishing differences between the similarity and dissimilarity in the figures appearing on the different notes, as indicative of the amounts of same.

John L. Dougherty, cashier of the Commercial Bank, at Liberty, having occupied that position for fifteen years, testified as follows: "In connection with my business, I have had occasion to give attention to the matter of handwriting and the signatures of people and the identification of their writing. We have to know our customers signatures; naturally we pick up information about handwriting. My position has required me to do that kind of work. I knew Dr. Joseph Meffert all my life, nearly; he did most of his banking business while I was with the Commercial Bank, at the First National, but he did some business with us. I had occasion to see his checks and also to pass on them. At times he had an account in our bank. I am familiar with his handwriting." Shown the two notes, one for $2950 and the other for $500, the witness stated: "that the indorsements on the back of same were not in the handwriting of Dr. Meffert; the signatures seem to be in his writing. On the note for $2950, it looks like the ``Hundred' had been scratched out between twenty-nine and 50/100 dollars, and the space written over. The top stems of the ``H' seem to have been changed. The ``Hundred' and ``Twenty-nine' is heavier, as would be natural when written over an erasure. It looks very much as though there had been a line drawn there, running from the ``Twenty-nine' to the cents, 50/100, and the ``H' looks like it had been made with two strokes and then afterwards another added. At first glance, if it was by itself, you would not know whether it was intended for an ``H' or not. On the $50C note, it looks to me like the ``2' had been erased and written over with a different colored ink." On cross examination, witness stated: "that if he was called on to pay a check for ``Two Thousand, Nine Hundred Fifty' he would not pay it, because there is nothing there to indicate that it is dollars. There is nothing to indicate that there is dollars, except the dollar mark in front of it and that is imperfect. It is not ``$29.50' in figures and it ain't ``$2950.' There is no symbol or anything to indicate to me what it was. It looks to me like the figures ``$2950' are Joseph Meffert's, but I couldn't tell without a good many more of them to compare with it, than I have. I would not say that those figures following the dollar mark ``2950' were written by Joseph Meffert, for $2950. This note which you show me as having been made to his mother looks like the Doctor's handwriting. I would swear to it as well as I can swear to anything. The word ``Hundred' in the $200 note is written over an erasure. The signature to that note is in his writing. It looks as though the $200 note had been written on some kind of a blank receipt. The Doctor was a slovenly man in making his checks and notes, at times. I knew Dr. Joseph Meffert all my life and I don't know whether he ever drank or not. I think the Doctor wrote the note which you have shown me, to his mother, and also the $200 note. I think he wrote the word ``Hundred' in the $500 note. I don't recall that he ever borrowed money from our bank."

James H. Southwell, director of a Microscopical Pharmacy in Kansas City, testified: "That he had about thirty years experience in this line of work." Shown $500 note, he stated: "That this note is written in the common ink used, called fluid or as chemists called it, iron nutgall ink, except the figure ``2' which is written in common black or logwood ink. I tested this note in different places, first the figures, then the signature, and found that the ``9' and ``0' were written in iron nutgall ink, common writing fluid, such as Carter's, Sanford's or Arnold's, while the ``2' is written in logwood potassium ink, or common black ink. These are the two kinds most commonly used for business purposes. The body of the note and all of the date except the ``2' is in one kind, and the ``2' is in another kind." This is followed by a long statement of the witness as to the constituent elements of the different kinds of ink and the test used in determining their nature. Continuing, the witness said: "I put the $2950 note through these tests. I found that it was entirely written in one kind of ink and examined the word ``Hundred' microscopically, and found a line of erasure that ran from a little this side of the ``' to nearly the end of the ``u' upon the paper. This examination disclosed that the paper fiber was disturbed and that it ran over to the ``50/100.'" The witness demonstrated the manner in which the erasure was disclosed, by illuminating the same under an electric light. Following this exhibition, the witness said: "Well, you can see at the end of the ``d' there, that the erasure or disturbing of the paper runs up to the ``d' and beyond. The paper is scored or picked into a little bit where the erasure was made. By moving the paper along here, you can see, it shows plainly. The erasure I find is discernible up to the first part of the ``u', and from there on clear on before the small ``r' in the word ``Hundred.' I have had a great deal of experience in the matter of examining handwriting in one way or another. I have made a study of this subject. I think these indorsements were written by the same person. It seems as though they were done by a writer, more or less expert than the person who did the writing on the face of the notes. I discover no common characteristics between the writing on the faces of the notes and the two indorsements, but the latter have the same characteristics." Further dissimilarities between the writing on the faces of the notes and the indorsements were brought out on cross-examination, as well as points of difference not necessary to be detailed here.

Anna Meffert, daughter of the deceased, testified as follows: "I was present at the time of my father's death, in 1916. I was not living with him at the time, but was with him from Sunday until after he died on Wednesday. There was in his house when I went there and until his death, the housekeeper, and Mrs. Charles Meffert was out there part of the time; a nurse was with him all the time. When I saw my father on Sunday, before his death, he was very low and seemed to recognize me a little; he kind a smiled, but was not able to talk. I don't remember of his saying anything to me. I walked up to him and took hold of his hand and he just pressed mine and I could tell from the way he was acting that he knew who I was. He seemed to be in rather a dazed condition, and he was lying with his eyes closed; he was conscious on Monday and a little conscious on Tuesday, but after Tuesday evening he did not seem to know anything. On Tuesday night I went out to Mrs. Baker's and stayed all night. Wednesday morning, as soon as I could come back, I went to his sick room and was there until he died. I may have gone out to lunch, I don't remember; I may have gone into the dining room now and then and came back after lunch and came back and sat there before he died and when the nurse came into the kitchen and told us he was dying. During the last day, Wednesday, he did not converse with anyone; he was not conscious; I was present along from early in the morning until when I just stepped out. If my uncle, Dr. William Meffert, from Emporia, had any conversation with him that morning about notes, I did not see him and did not hear him. He was there on Wednesday afternoon and I think it was then he went in there; I was there sitting in the room and he wanted father to take some nourishment; he was lying at the time in a semi-conscious condition — I don't know whether it was a stupor or not. He did not open his eyes or say anything. They put something into his mouth, and Dr. William Meffert took his face and patted it and said, ``Swallow, swallow, swallow.' That was all, there was no response on my father's part." Cross-examined, she said her father was about 59 years of age, and that he left her the greater part of his property in his will. Portions of the will were then read over to the witness. "I cannot say what the relationship was, or had been between my father and his brother William as manifested when the latter came to my father's bedside, because he was unconscious. I cannot say that it was friendly; I am sure that he was unconscious from Tuesday evening on. I was in the room off and on."

C.W. Ransom author of a system of penmanship in different forms, for thirty years, testified: "I have written text-books on the subject, and have had occasion to examine handwriting and disputed documents for the purpose of ascertaining the genuineness of the writing. I have made a study of that matter. I have examined these two notes, one for ``twenty-nine hundred dollars' in writing and ``$2950' in figures, and one for ``$500' in figures, and I have had an opportunity to examine these writings you hand me and which are marked as exhibits in this case. In my opinion, the indorsement on the back of the note for $500, to-wit, ``By cash, October 12, 1912, on within note $10', is not in the handwriting of the party who wrote the face of the note, excluding the date there or the ``2' in said date. The indorsement on the note for $2950 is, in my opinion, not in the handwriting of the party who wrote the face and body of that note and the signature." Witness then explains his reasons for that conclusion, based upon the manner in which the writing was done and the formation of the letters. Taking the $500 note, the witness stated: "that it was very evident that underneath the ``2' in the date 1902, there had been an erasure." The reasons for this conclusion are also given, not necessary to be detailed. Continuing, the witness said: "It looks very much like the ``twenty-nine' in this note for $2950 was written, but the ``' was made and then a straight line extended to the ``50' and then this line was erased. This erasure seems to have been made clear across and right over the top of the ``Hundred' and the loop or the top of the uprights of the ``H' are the remnants of the old ``.'" Cross-examined, the witness said: "I understand that all the signatures are admitted to be genuine on these different notes. I think I could pretty definitely determine whether the handwriting was that of Joseph Meffert." The witness then proceeds to define the distinguishing characteristics between the different writings on these notes. The conclusion being that the changes made were not in the handwriting of Dr. Joseph Meffert, or more correctly perhaps, that the signatures and the other writings on the notes were not by the same person who made the erasures and the changes. On re-direct examination, the witness stated "that the $200 note was apparently written on a piece of paper that had theretofore been used for something else and was dated ``May 1st' with an indelible pencil." What are called the characteristics of handwriting were explained, and while they were stated to vary in some degree, according to the position of the writer and the conditions under which they were written, the characteristics would be the same.

Martin E. Lawson, testifying on behalf of the defendant, said: "I live in Liberty; I am the administrator of Dr. Meffert's will. I had known him about twenty-five or twenty-six years before his death, and had acted as his attorney for twenty-one or twenty-two years. He was in my office on an average of once a month during that time. Frequently he was there twice a week, oftentimes I would have him sign deeds, contracts or papers, and he would sit down and make some rough sketch of agreement he was about to make with someone, for me to put in legal form. I have seen him write a great many times and have had his handwriting before me frequently. I had seen the note dated June 8, 1913, payable to Charles Meffert, for $200, before the Doctor's death. My recollection is I saw it before it was delivered to Charles Meffert. I first saw these two notes, one, Twenty-Nine Hundred Dollars, in writing, $29.50, and the $500 note, the two that are in controversy in this case, shortly before the Doctor's death. Sometime after his death, Charley Meffert and his wife brought the notes to my office. I then saw the indorsements or credits on the backs. From my experience and acquaintanceship with the Doctor's handwriting and having seen him write, I am of the opinion that these indorsements were not written by him. I formed that opinion when I first saw the notes and took them to his banker, Mr. Major, that same day. At the time this suit was instituted and after these notes were brought to me and my suspicious were aroused about them, I took a statement to Mrs. Baker and Mrs. Meffert, the mother and sister, and asked what they knew about it. I took their statements in writing, Mrs. Baker signed it and Mrs. Meffert, who was blind, made her mark."

Cross-examined, the witness said: "I do not attempt to account for the slovenly or careless way in which the $200 note is written. The Doctor had a way of picking up most any sort of paper and writing on it. I notice this note is written on a receipt blank. I don't know anything about his writing, rubbing out and writing over it. He was careless in the formation of letters; he did not form his letters fully and completely at all times. I never saw him rub out and write over anything. This note looks like he started, or somebody started, to write the word ``Received' here and this had been rubbed out and the note written over the top of it. It is written on a loose piece of paper." The witness then explains the conditions under which the $200 note, conceded to be genuine, was made by the deceased to his brother, the plaintiff.

This was all of the evidence.

The setting forth at length of the relevant testimony of the witnesses for the respective parties is not deemed inappropriate to assist in determining the greater credence which should be given to their testimony if, in its examination, the rule is kept in mind as to the province of the jury where there is substantial evidence to sustain any issue. In no other way than by a presentation of the testimony of witnesses in their own words can the same be weighed and measured so as to satisfactorily determine its probative force. In the application of this test, the intelligence, experience and familiarity with the matter in controversy and the interest or lack of interest of the witnesses in the result of the action, may be fairly taken into consideration.

The payment of the notes in controversy is contested: (1) on the ground that they have been paid; (2) that they are barred by the Statute of Limitations; (3) that they are void because of material alterations; and (4) that the credits on the backs of same are not in the handwriting of the alleged maker.

I. Other than by implication, there is nothing to sustain the contention that the notes have been paid. The facts, not disputed, are that Joseph F. Meffert, in addition to being actively engaged in the practise of medicine, madePayment. money in dealing in real estate, in which transactions he had continuous dealings with local banks. These facts lend persuasive coloring to the conclusion that while thus engaged, it would be rather singular that he should not only borrow, but retain without any payments thereon, for almost ten years, the amounts of these notes, from a brother not shown to have been possessed of any considerable means, who combined the modest vocations of a barber with that of a druggist in a small town in Kansas. In the face of these facts, the impartial mind which draws its conclusion from the known and well recognized conduct of men under like circumstances might reasonably hesitate to give ready credence to the creation of these debts. If created, however, no substantial proof has been adduced as to their having been paid.

II. A more serious question confronts us in the contention as to the bar of the Statute of Limitations. On the back of the note for $2950, there appears a credit or the indorsement of a payment for $50; dated October 24, 1911, which was twentyLimitations: days before the note would have been barred by theIndorsements. statute. On the back of the note for $500 there appears a credit or the indorsement of a payment of $10, dated October 21, 1912, or twenty-three days before this note would have been barred by the statute. Waiving the rather unusual circumstances that these notes were made by a business man, who, judging from his pecuniary successes or superior acquisitive ability, must have realized the importance and be reasonably held to have pursued the course of promptly meeting his obligations, it is rather unusual, to say the least, that he would borrow these small amounts from a brother, who is not shown to have had any money, and thereafter completely ignore the obligations thus incurred, for almost the entire legal life of the debts and then make these nominal payments in the manner in which their entry upon the backs of the notes indicate that they were made.

However, the absence of proof as to these payments having been made other than their entry on the backs of the notes is the matter with which we are primarily concerned. Aside from the opinions of certain of the witnesses for the plaintiff, shown to have been non-experts, that the handwriting of these entries of payments was the same as that of the signatures of the payer or the alleged maker of the notes, there was no evidence offered on this subject.

It is the well settled law of the State that there is no presumption that an indorsement of a payment on a promissory note was made at the time it bears date, and to remove the bar of the Statute of Limitations it is necessary to adduce in evidence other proof than the mere production of the note with a credit thereon, bearing a date which would have that effect. A contrary rule was announced in Carter v. Carter, 44 Mo. 195, and in Smith v. Ferry, 69 Mo. 142, to the effect that in indorsements of payments on promissory notes, it is presumed that they were made at the time they bear date; but these rulings, as shown by later cases, do not correctly declare the law, in that it is now held to be necessary, in order to remove the bar of the statute, to show that the credit was actually made by the owner of the note, or by his direction at a time when the note was not barred by the statute, or, by more direct evidence, that the payment was actually made by the maker at such time. If it be shown that the credit was indorsed on the note by the holder at a time when the same was not barred and was, consequently, against his interests to have made it, this will furnish prima-facie proof that payment was made at that time and in the absence of a showing to the contrary the note will not be barred, but in such cases there must be proof that the credit was, in fact, made at such time. There was no such showing. Aside from mere opinion evidence as to a similarity in handwriting, which was subjected to serious question by strong counter proof, no effort was made by the plaintiff to support the claim that these payments were made when dated or at any other time. If the rule regulating this matter were otherwise, ample opportunity would be afforded for fraud, in that the holder of a note would have it in his power to toll the running of the statute by simple dating a payment prior to the bar, especially where, as in the instant case, death had closed the mouth of the maker. The countenancing of payments so entered without proof, would result in destroying the rule heretofore recognized, that payments antedating the bar of the statute are held to be against the holder's interest, in that an antedated entry of payment would redound to his interest. Hence, the wisdom of the requirement that there must be proof aliunde of such payments.

In Phillips v. Mahan, 52 Mo. 197, it is held that an indorsement of partial payment made on a note by the holder without the privity of the maker is not of itself sufficient evidence of a payment to repel a defense created by the Statute of Limitations.

In Goddard v. Williamson's Admr., 72 Mo. 131, it is held that when the Statute of Limitations is relied on as a defense to a note, the plaintiff should not be permitted to read in evidence credits indorsed on the note without first proving when the indorsements were made.

In Regan v. Williams, 185 Mo. l.c. 631, it is held that it is not the indorsement of a credit, but the payment that operates as a renewal of a promise and removes the bar of the Statute of Limitations; that the party relying on a payment to stop the statute must not only establish that it was made, but that it was made by the authority of the defendant; that a part payment does not take a debt out of the statute unless made under such circumstances as to warrant the inference that the debtor thereby recognized the debt and signified his willingness to pay it.

In Zaring v. Bauman, 223 S.W. (Mo. App.) 947, in which the facts disclosed that the holder of a note had indorsed payment thereon before the note was due, it is held that the mere indorsement of a credit on a note does not prove that such credit was entered before the note was barred, but there must be evidence aliunde of the indorsement of such payment to show that it was in fact indorsed as a credit before the note was barred.

In Berryman v. Becker, 173 Mo. App. 346, it is held that where there is proof that a credit was indorsed on a note by a holder at a time when it was not barred, this being against his interest, is prima-facie evidence that payment was made at that time, and, in the absence of any showing to the contrary, the note will not be barred, but where there is no evidence aliunde as to when the credit was indorsed, there must be proof that the payment was, in fact, made.

III. The testimony of chemical and handwriting experts was to the effect that erasures had been made on the faces of the notes; that same was indicated by the scratched orAlterations. roughened condition of the paper and that the ink used at the points of erasure was different in composition and color from that used elsewhere on the notes.

The ancient rule of evidence, as stated and discussed by Mr. Greenleaf (1 Gr. Ev., sec. 564), was that alterations and erasures of written instruments were presumed to have been made at or prior to the time of their execution. The trend of authority is still in favor of the rule as thus declared. However, where an alteration or erasure appears suspicious on its face; for example, where a different ink has been employed at the point of erasure from that elsewhere used in the instrument, it demands explanation. In the presence of this, or equally cogent circumstances of a suspicious nature, the law presumes nothing and the question as to the time when, the person by whom, or the interest for which, the alteration was made, are matters of fact to be found by the jury upon proof adduced by the party offering the instrument in evidence.

Commissioner RAILEY, in Collison v. Norman, 191 S.W. 60, with commendable care, has recently discussed the question here under consideration and has reached the conclusion above indicated, supported by a wealth of authority from our own and other courts. The erasures here testified to by experts as having been made, were, in one instance, such as to change the sum payable; in the other, to change the date. Such changes are classified by our statute as material alterations. [Sec. 911, R.S. 1919.] As such, they should have been explained. [Mech. Am. Nat. Bank v. Helmbacher, 201 S.W. (Mo. App.) 383.]

We have heretofore discussed the question as to whether or not there was any evidence that the indorsement of the payments on the notes was in the handwriting of the deceased.

IV. Error was committed in the admission in evidence, without more, of the testimony of a brother of the deceased as to a statement alleged to have been made by the latterAdmission: when under all the attendant facts andIn Extremis. circumstances he was in extremis. This statement was as follows: "I have fixed his notes, and he will get his money." In the absence of evidence connecting this statement with the notes in controversy, or an identification in some manner of the person referred to, this statement, under the most elementary rules of evidence, was inadmissible. Its admission, unexplained, was irrelevant and could only have been prejudicial to the defendant.

For the reasons stated, this cause will have to be reversed and remanded. In the absence, upon a re-trial, of more substantial proof than has heretofore been adduced, a judgment for plaintiff cannot be sustained.

All concur.