Conkey v. Post , 7 Wis. 131 ( 1859 )

By the Court,

Cole J.

This action was commenced before a justice of the peace, and though the complaint is quite informal, yet as no objection was taken to it in that court by the defendant, (now appellant) it must now be deemed sufficient-On several occasions we have held that every reasonable in-tendment would be made in support of pleadings and proceedings in justices’ court, where parties generally make oral statements of the cause of action or defense, and do not resort to formal written pleadings.

We are likewise of the opinion that the evidence as to the note being lost was sufficient to admit parol proof of its contents. Baker, the justice, testified that a note like the one described was given in evidence on the trial before him, that he rendered judgment upon it in favor of the plaintiff, and that since the trial he had carefully searched several times among his papers for the note but could not find it.

This was the best proof which could have been made as to the loss of the note.

The only other question material to be noticed is the alleged error of the circuit court in permitting the plaintiff below on cross examination, to ask the witness Kelly whether he raised any objection to the reading of the note on either of the trials, before Hurlbut or Baker, for any cause whatever. The defense to the action was that the note, after delivery, and without the consent of the maker, had been altered in a material part and was therefore void. And for the purpose of establishing this defense, among other witnesses, Kelly, who had been counsel for the defendants in two suits brought in the justices’ court on this same note, was sworn, and testified that he saw an erasure and interlination on the face of the note — that the words “ or bearer,” which appeared in the line of the note were erased, and the words “ or order” were inserted over the line, and that the interlination did not appear in the same hand writing as the body of the note. To impeach or discredit his testimony upon this point we suppose, he was asked the question whether or not upon the former trials he had objected to the admission of the note in evidence. For if there had been any suspicion about the note, any alteration or mutilation apparent upon the face of it, it was very reasonable to conclude that Kelly would have objected to its admission in evidence, on that ground, at the former trials. And if he did nothing of this kind, his conduct then tended strongly to impeach or discredit his testimony as to the fact that such a suspicious alteration really existed. It seems to us that the question was a legal and proper one to be put to the witness. Undoubtedly the object of asking the witness Hurlburt the question as to whether any objection was made to the note being read .on the trial before him, was to rebut the presumption that the note had been altered without the knowledge of the maker, and that this defense had not been made until the note was lost.

All this was competent evidence, and very proper to be taken into consideration, with the other circumstances in determining the question as to the alteration of the note. The court found as a matter of fact, that the erasure and interlination were made by the_ defendant, Post before the delivery of the note to the payee. That question being fairly submitted to the court, we cannot now disturb the finding.

The judgment of the circuit court is affirmed.