Winters v. Mowrer

Opinion by

Mb. Justice Mitchell,

The learned court below treated the note as the • cause of action set out in the statement, aud we cannot say that it was in error in doing so. The procedure act of 1887 requires the statement to be accompanied by a copy of the note, etc., “ upon which the plaintiff’s claim is founded,” and the statement in the present case first avers the debt, and then follows it, in the same count, with a copy of the note, set out not according to its legal effect as in a common law declaration, but according to its exact form and tenor as required by the procedure act. In the anomalous and unscientific state to which our pleading is reduced by this act, it is impossible to predicate certainty of anything in regard to it, but this is not a common law declaration, and it has the general characteristics of a statutory statement on the note.

The action being upon the note, the question of the right to recover on the original consideration, discussed by the appellant, is not before us. For the same reason the testimony of the witnesses Rowe and Conrad that they saw the money loaned, was not conclusive, and therefore the plaintiff’s first and second points were properly affirmed only with a qualification as to the bearing of the evidence on the real issue on the note.

The defence being an alleged fraud in the alteration of the amount of the note, the door was thrown open to evidence bearing in any way on the nature of the transaction. The testimony therefore, that plaintiff, at about the time of the alleged loan, was borrowing a larger sum from the witness Wentz, was entirely competent. It might not under some circumstances be of much weight and was certainly not conclusive, but it bore on the probable truthfulness of the loan alleged on one side and denied on the other.

So also the declarations of plaintiff before the family of defendant’s testator that nothing was due him, and his failure to mention this debt when inquiry was made at the inquest of lunacy, were properly admitted as bearing on the fact of the alleged loan.

The learned judge however used certain expressions in his charge, no doubt inadvertently, which unduly increased the plaintiff’s burdens. Thus he said, “the defendant .... alleges that the note produced by Winters is not the note of Mowrer or that it was signed by him,” and again, “ If the whole evidence has satisfied you that the note produced was actually signed by George Mowrer as it now appears,” etc. We do not understand that Mowrer’s signature to the note was disputed. Plaintiff had a genuine note, and he was entitled to the benefit of a clear understanding of that fact by the jury as the basis of his ease. Tlie issue was whether he had fraudulently altered the amount.

What the learned judge meant, no doubt, was that defendant denied that the note in its present form was signed by Mowrer, etc., but the expressions used unfortunately had a larger scope, and tended to give the jury the idea that the defence denied the execution of the note by Mowrer altogether. For this error we are obliged to send the case to another jury. • Judgment reversed, and venire de novo awarded.