City of Carterville ex rel. Ruggles v. Luscombe , 165 Mo. App. 518 ( 1912 )

COX, J.

Action to recover the amount of ten tax-bills issued to C. A. Buggies, doing business under the name of Buggies Cement Co. for the construction as contractor of certain sidewalks in the city of Carterville. The petition is in the usual form. The answer is quite lengthy but for the purposes of this appeal we need only notice one feature of it. It alleged that the taxbills for sidewalks against the lots described in the petition when issued were against the Federated Mines and Milling Co. as owners, and purported to be issued by virtue of ordinances No. 319 and 364 and were delivered to the Buggies Cement Co. as issued, but that since their delivery, the plaintiff or his attorney had, without the knowledge of the city clerk and without any authority whatever, changed all of said taxbills by scratching out the name Federated Mines and Milling Co. and inserting therein T. T. Luscombe and by scratching out the figures 319 and writing therein the figures 311 and by scratching out the figures 364 and writing therein the figures 363 and that the taxbills filed as exhibits were not the taxbills issued by the city of Carterville. The reply was a general denial. Plaintiff offered the taxbills in evidence and defendant objected to them upon the ground that they showed upon their face that they had been mutilated aud changed and incorporated in his objection the changes as alleged in his answer. The court upon an inspection of the taxbills held that they were not admissible without the alterations which were apparent upon their face being first explained. No explanation was offered. The taxbills were excluded and judgment went in defendant’s favor and plaintiff has appealed.

The question for our determination is whether the court erred in excluding the taxbills. Alterations in written instruments, in the absence of anything suspicious on their face to indicate improper action in making the alterations, are presumed to be made at or before the execution of the instrument and the burden is on the party assailing the instrument to show an unauthorized alteration. [Paramore v. Lindsey, 63 Mo. 63; Burnett v. McCluey, 78 Mo. 676; Stillwell v. Patton, 108 Mo. 352, 360, 18 S. W. 1075.]

To the above proposition counsel agree. Appellant concedes that the taxbills show on their face that alterations have been made, but contends that there is nothing suspicious about the alterations as they appear upon the= face of the taxbills and hence the general rule that the alterations are presumed to have been made at or before the execution of the instrument should be applied in this case, the taxbills admitted, due credit given them and the burden of proving the defense of an unauthorized alteration cast upon defendant. Defendant contends that the alterations are in a different hand writing and different ink from the body of the taxbills and that an inspection of the taxbills will arouse suspicion that the alterations were made after delivery and that the court, was, therefore, right in requiring an explanation of the alterations before admitting them in evidence.

By agreement of counsel the original taxbills have been presented to us for our inspection and we have carefully examined them and are of the opinion that appellant’s contention that the alterations therein are not of a suspicions character is right and the court erred in excluding them. The taxbills are made out on printed forms with blank spaces in which to fill in dates, names, description of property, amounts, etc* On a very careful inspection we are clearly of the opinion that the alterations are in the same hand writing- and same ink as the other written parts of the taxbills* The ink used appears to have been a dark colored ink that would make a darker line with a heavy stroke than a light one, or if the ink on the pen was nearly exhausted it would show a little lighter in color than when the pen was full. For example, in one place where the word “fifty” is written the first three letters are of much lighter shade than the last two letters. The signatures of the mayor and clerk on some of the taxbills are of a lighter shade than others but all are evidently of the same ink. In some of the bills the change in the figures are clearly the same shade of ink as the signature of the mayor or clerk. The greater part of the written parts of the taxbills are written in back hand and the words in the alterations are in back hand. In one bill the description of the property as first written reads “Lot 38 in South Carterville Mining and Milling Co’s.” then a line is drawn through the words “South Carterville Mining- and Milling Co’s.” and the words “Luscombe’s Addition” added so that as altered it reads “Lot 38 in Luscombe’s Addition.” It will be noticed that as first written the description was incomplete, and had the taxbill remained in that condition it would, no doubt, have been objected to because the description was indefinite. Evidently the party filling out this taxbill discovered that he was writing a wrong description and as soon as he made the discovery, he drew a line-through the erroneous words and wrote in the correct ones. In our judgment as far as anything appearing on the face of these taxbills is concerned the other alterations were made in the same way and for the same reason. We are clearly of the opinion that there is nothing suspicions appearing on the face of these taxbills and the court erred in excluding them. In this view of the case it is not necessary for us to pass upon the question as to whether or not the taxbills should have been admitted without explanation had the alterations been of a suspicious character. Judgment reversed and cause .remanded.

All concur.