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rent under the lease. The instrument pro-, action which he had commenced against ap-
vided that "if any rent shall be due and un- pellant. The judgment rendered in his favor
paid, or if default shall be made in any of recited that:
the covenants herein contained, then it shall

“The defendant and all persons holding under
be lawful for the [lessor] to re-enter the said her or claiming to hold under ber are forever
premises and remove all persons therefrom." barred from asserting any rights in and to the
At the date of the assignment to respondents property herein described, and it is adjudged
the controversy between appellant and Haas that the plaintiff do have and recover the ex-
over the alleged past due rents had actually clusive possession of said premises."
ripened into litigation, for he had before that

This array of evidence amply supports the time commenced in the superior court his action against her for the purpose of ejecting

findings of the trial court upon the subject

of the alleged misrepresentations. her from the demised premises because of the

[2] In her attack made upon the findings alleged nonpayment. Appellant knew that the action was pending, but during the nego- spondents should have resorted to the rem

just mentioned, appellant contends that retiations leading up to the assignment she concealed the fact from respondents. Not edy by means of arbitration which is providonly so, but she told them that "it was a good ed for in the lease in the event of a refusal lease,” and that she had “a good lease of we cannot perceive how this contention bears

of the landlord to consent to an assignment. four or five years," the lease on its face bav· ing in fact then over four years to run.

any relation to the question whether appel

The assignment was made September 2, 1919.

lant made fraudulent misrepresentations to With this latter fact in mind we quote from respondents. Granting, however, that it does,

there are several answers to the contention, the testimony of respondent Humfreville :

only one of which need be noted. The result "Q. When was the first time you learned of of the litigation between Haas and appellant that suit? A. The next morning after we paid demonstrates that, at the date of the purher the money. * * * Q. That would be on the 3d of September, would it?

Yes. ported assignment to respondents appellant * Q. How did you learn that? A. Well, had no assignable interest in the lease, for there were painters painting the house, and the the suit was based upon an alleged breach of painter told me, Mr. Brown. * * Mr. Pow- the terms of the instrument occurring before ell had gone down town, and I waited till he the assignment was made. Manifestly, the came home, and I told him, and we wanted to clause concerning arbitration could have had find out about it, and I went in and told Mrs: no application except in the case of an asMohr not to move out. night, and I told her not to move out till we signment made by an actual tenant under the found out about it. * * * I went in there and lease, one who was in good standing under asked her about it, and she just said, 'Is that it, and who had a transferable interest in so ? Is that so ? That is all she would say. it. The provision was not designed to settle So I said, 'Well, don't make any-don't do any the question whether a tenant had power to more towards moving out till we find out about assign, but whether a purported assignee

* * She went in the room and made ar- should take under an assignment. Appellant rangements to move. She collected her little trunk, and her little boy carried it out, and I clause of the lease in assaults which she

urges her contention as to the arbitration went out to the doorway and told her not to take it out. She just pushed me aside and car- makes upon other findings of the trial court, ried it out anyway; while she was out I locked but what we have here said will sutlice to her door, and I sat down by the door and I dispose of the question wherever it arises. sat, there for quite a little while. She came [3] The trial court found that the judgback in; she came back to it, she was going in, ment in the action between Haas and appeland I forbid her to go near the door; she went lant had become final at the time of the away and in a little while I opened the door and trial of the present action, and it is contendshe had taken her clothes out the window. ed that the finding is without support in the

* She just moved out, lifted her clothes out the window."

evidence. We doubt, but do not decide,

whether the finding in question was a maThis testimony, it is true, relates to oc- terial one, for the mere pendency of such an currences after it may probably be said with action, if the fact had been made known to truth that the deal between the parties had respondents, might well have deterred them been closed, but appellant had not yet left from dealing with appellant, in view of the the premises and she was thus given the op- consequences possibly to follow from a judgportunity to make the reparation to respond- ment at any time to be rendered therein unents which in strict morals was due from favorable to appellant. This question we her. Under all these circumstances, the eva- leave, as we are satisfied that the finding is sive character of her answers to Mrs. Hum- supported by the evidence. Appellant's spefreville's questions, and her conduct when cific point is that the record fails to show asked about the suit, show her fraudulent in that the judgment was ever entered, in that tent in making the representations to the ef- it "contains no notice of the entry of the fect that she had a good lease. It finally judgment as prorided by statute.” Such a transpired that Haas was successful in the showing was not necessary, as the finality

it.' *

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(230 P.) and binding effect of judgments does not erations serve effectually to dispose of apdepend upon notice of entry, nor even, it ap- pellant's point that the offer of the judgment pears, upon the fact of entry. It has been was not accompanied by a notice of its entry. said that, where findings and decree were Other points are made by appellant, but signed by a judge, it "was then, and there they are disposed of by what we have said after, the ministerial duty of the clerk to as to the questions bove discussed. enter and docket the judgment, and to pre Judgment affirmed. pare and file the judginent roll, and he could not, by neglecting to perform We concur: FINLAYSON, P. J.; CRAIG, J. that duty, destroy or impair the effect of the judgment.” Baker v. Brickell, 102 Cal. 620, 36 P. 950. It is true that for certain purposes it is

SNEDDON v, BIRCH et al. (No. 4145.) necessary that notice of the entry of a judg (Supreme Court of Idaho. Oct. 17, 1924.) ment be given to a losing litigant. For instance, a defeated party must file his notice 1. Acknowledgment Om62 (2) Evidence of of intention to move for a new trial, “either nonappearance of party before certifying ofbefore the entry of judgment or within ten

ficer must be clear and convincing to over

throw acknowledgment. days after receiving notice of the entry of the judgment, or within ten days after ver- of the execution of a mortgage of real prop

In order to overthrow the acknowledgment dict, if the trial was by jury." Code Civ. erty, properly sealed and certified by a duly Proc. $ 659. Such provisions as this surely authorized officer, the evidence that the party cannot affect the evidentiary value of a judg- attacking such acknowledgment did not personment when offered in another action. "A ju- ally appear before the certifying officer must dicial record of this state, or of the United be clear and convincing. States, may be proved by the production of 2. Acknowledgment Om62(4)—Uncorroborated the original or by a copy thereof certified by

testimony of mortgagor insufficient to overthe clerk or other person having the legal come certificate of acknowledgmont. custody thereof” (Code Civ. Proc. $ 1905), and The uncorroborated testimony of the mortthere is nowhere any provision to the effect gagor is not sufficient to overcome the certifithat a notice of entry of judgment is part cate of acknowledgment, regular on its face. of a "judicial 'record.” Especially, it is to be 3. Pleading on 121(4)-Denial on Information noted that such a provision is not to be found and belief of easily accessible matters of pub. in the section of the code (Code Civ. Proc. lic record is not permitted. $ 670) which specifies what papers shall con A denial on information and belief of matstitute the judgment roll, this term of course ters of public record, easily accessible to a parbeing the equivalent of the expression "judi- ty, is not permitted. cial record,” when the latter is employed as

Appeal from District Court, Bear Lake referring to a judgment and the proceedings leading up to it. See Wickersham v. John County; O. R. Baum, Judge. ston, 104 Cal. 407, 38 P. 89, 43 Am. St. Rep. Action by Christina Sneddon against Rob118; Page v. Garver, 5 Cal. App. 383, 90 P. ert A. Birch and another. From a judg. 481.

ment for plaintiff, defendants appeal. It is true, beyond a doubt, that if the judg- firmed. ment here in question bore such a date at the John A. Bagley, of Montpelier, for appeltime it was offered as to show that it had lants. not ripened to finality under the statute pre Geraint Humpherys, of Montpelier, for reventing such ripening until the lapse of six spondent. months from its entry, the time within which appeals from final judgments must be taken DUNN, J. This is an action to foreclose (Code Civ. Proc. $ 939), it could not have been a mortgage given to secure the payment of received in evidence, but appellant makes no a note in the sum of $650. The complaint such point, nor does she contend that the alleged that the note and mortgage were judgment was not actually entered, nor that executed and delivered by appellants to the record does not show that it was entered. Thomas Sneddon; that the mortgage was As a matter of fact, the judgment was of-duly acknowledged and afterwards recordfered in evidence more than two years after ed; that thereafter Thomas Sneddon died; its date. Not only so, but the certificate of that his estate was duly prohated, and that the county clerk to the judgment roll of the note and mortgage in controversy were which it is a part, and which was offered in decreed to Christina Sneddon, respondent its entirety, contains the recital, “I

herein. do hereby certify the foregoing to be a true The appellant R. A. Birch filed his sepacopy of the judgment entered in the above-en-rate answer in which he admitted that he titled action, and recorded” at a certain page signed, the note and mortgage, but denied of a specified judgment book. These consid- upon information and belief that the estate

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


of Thomas Sneddon was probated, and de- , for the wife to acknowledge the mortgage. nied that respondent was the owner and hold. The question was simply whether she did er of the note and mortgage sued on.

acknowledge it. The appellant Olive V. Birch filed her [1, 2] The mortgage here bears a regular separate answer admitting that she signed certificate of acknowledgment duly signed the note and denying that she executed or and sealed by a notary. To successfully atdelivered the mortgage to Thomas Sneddon, tack the validity of such a certificate on the and further denied that she had acknowl- ground that it is false, the proof of the edged the mortgage. She admitted the death falsity must be clear and convincing. Chrisof Thomas Sneddon, but denied upon infor- tensen v. Hollingsworth, 6 Idaho, 94, 53 P. mation and belief that his estate was pro- 271; Gray v. Law, 6 Idaho, 559, 57 P. 435, bated or that respondent was the owner of 96 Am. St. Rep. 280; Bruce v. Frame (Idasaid note and mortgage,

ho) 225 P. 1024. In the latter case this court The case was tried by the court without said: a jury. The court found in favor of respond

"The uncorroborated testimony of the mortent and entered judgment accordingly: This gagor is not sufficient to overcome the certifiappeal is from the judgment,

cate of acknowledgment, regular on its face.” Appellants rely upon the contention that Olive V Birch did not acknowledge the Judgment affirmed with costs to respondexecution of the mortgage; that she did not ent. deliver the note and mortgage to Thomas Sneddon, and that Christina Sneddon was

MCCARTHY, C. J., and WILLIAM A. not the owner of the note and mortgage.

LEE and WM. E. LEE, JJ., concur. Thomas Sneddon's estate was probated in Bear Lake county, where this action was

BUDGE, J., did not sit, brought and tried. The allegation of the complaint that the note and mortgage were decreed by the probate court to Christina GENERAL MOTORS ACCEPTANCE CORSneddon was denied on information and he

PORATION V. TALBOTT et al. lief, which was no denial in law. The alle

(No. 4127.) gation was therefore admitted. Į [3] A denial on information and belief of

(Supreme Court of Idaho. Oct. 17, 1924.) matters of public record, easily accessible to 1. Statutory provisions. a party, is not permitted. First National

Under the provisions of C. S. § 5992, an Bank v. Callahan, 28 Idaho, 627, 155 P. 673; alteration which changes the date, the sum First National Bank v. Walker, 27 Idaho, payable or the time of payment, or any other 199, 148 P. 46; Vadney v. State Bd. of Med. change or addition which alters the effect of Examiners, 19 Idaho, 203, 112 P. 1046; Ben- the instrument in any respect, is a material nett Co. v. Twin Falls L. & W. Co., 14 Idaho, alteration. 38, 93 P. 789 ; Work Bros. V. iney, 7 [Ed. Note.-For other definitions, see Words Idaho, 460, 63 P. 596; Simpson v. Reming- and Phrases, First and Second Series, Material

Alteration.] ton, 6 Idaho, 681, 59 P. 360.

It is immaterial that Olive Birch did not 2. Bills and notes em 344 Purchaser taking personally deliver the note and mortgage. note with installment overdue at date of

transfer is not holder in due course. It is evident that they were delivered and there is no pretense that her husband did

If, in a promissory note providing for not deliver them.

payment in installments, any installment is Against the claim of Mrs. Birch that she chaser takes the whole note as overdue paper,

overdue at the time it is transferred, the purdid not acknowledge the execution of the and is not a holder in due course. mortgage, supported by the statement of her husband that she did not acknowledge it on

3. Bills and notes cm 537(6)-Whether purthe date given in the certificate, we have

chaser of note shown materially altered on its

face is bona fide holder is for jury. the notary's certificate supported by his positive testimony that Mrs. Birch did per- it is apparent from an examination thereof

Where, upon the face of a promissory note, sonally appear before him and acknowledge that material alterations have been made in the execution of the mortgage. The trial the date, the result of which was to change court, with the witnesses before it, was the the time of payment, and that an erasure and proper tribunal to pass upon their cred change has been made in the amount, and ibility. It found that Mrs. Birch did appear where testimony is introduced by the maker in person before the notary public and ac

of the note to the effect that the date has been knowledge the execution of the instrument changed; that he neither authorized the change in question, and its decision is sustained by nor had knowledge of the same, and such tes

timony is not contradicted, denied, or explainabundant evidence.

ed by the holder of the note, the question as There was no contention by respondent to whether the note was regular and complete that the mortgaged property was not com- upon its face when transferred, whether it was munity property, nor that it was unnecessary / transferred before maturity, and whether it

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em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

(230 P.) was purchased in good faith, so as to make the promissory note; that the promissory note purchaser a holder in due course, were ques- and conditional sale contract were delivered tions of fact properly determinable by the to Changnon & Co., for the sole purpose, jury.

and no other, of submitting the same to an 4. Direction of verdict erroneous.

agent of respondent for approval, but that Held, under the facts of this case, that the the instruments were never returned, alcourt erred in directing the jury to return a though numerous demands were made for verdict in favor of respondent.

them. Respondent further alleges that the

note was materially altered by changing its Appeal from District Court, Bannock Coun- date from December 7, 1920, to February ty; O. R. Baum, Judge.

14, 1921, thereby changing the time of pay-, Action by the General Motors Acceptance fendant W. O. Johnson made no appearance.

ment of the installments of the note. DeCorporation against George W. Talbott and another. From a judgment for plaintiff, the The cause was tried to the court and a jury. named defendant appeals. Reversed and re

Both sides having introduced proof and restmanded for new trial.

ed, a motion for directed verdict was made

VerSee, also, 38 Idaho, 13, 219 P. 1058.

by respondent, which was sustained.

dict and judgment in accordance with the Arthur W. Holden and Solon Orr, both of prayer of the complaint was thereupon enIdaho Falls, for appellant.

tered, from which judgment, this appeal is H. J. Swanson, of Pocatello, for respond taken. ent.

Numerous assignments of error are made

in appellant's brief, and relied upon for reBUDGE, J. This action was brought to versal of the judgment. We deem it unrecover upon a promissory note. The com necessary to discuss each one separately. plaint alleges that the note in question, a It is contended that the court erred in adpurported copy of which appears in the com- mitting in evidence the note sued upon, Explaint, was made and executed by appellant hibit A. This objection is based upon C. S. on February 14, 1921, and delivered to de- $$ 5991 and 7980, which read respectively fendant W. 0. Johnson, doing business un as follows: der the name Changnon & Co. The principal "5991. Where a negotiable instrument is maamount of the note was $1,080, which was terially altered without the assent of all parpayable in 12 equal monthly installments of ties liable thereon, it is avoided, except as $90 each, the first installment being due and against a party who has himself made, aupayable "one month after date." It is next thorized or assented to the alteration and

But when an instrualleged that, “before the due date of the subsequent indorsers. first payment of said note," Changnon & hands of a holder in due course, not a party

ment has been materially altered and is in the Co. indorsed said note to plaintiff, in due

to the alteration, he may enforce payment course of business and for value, and that thereof according to its original tenor.” no, part of the note had been paid, except "7980. The party producing a writing as the first 2 installments. To the complaint a genuine which has been altered, or appears to demurrer was filed, but was overruled by have been altered, after its execution, in a the court. Appellant thereupon answered, part material to the question in dispute, must denying specifically each and every material account for the appearance or alteration. He allegation of respondent's complaint, and al- another without his concurrence, or was made

may show that the alteration was made by leging that on December 7, 1920, he executed with the consent of the parties affected by it, a note similar to the one set forth in the com or otherwise properly or innocently made, or plaint, and, as a part of the same transac- that the alteration did not change the meaning tion, entered into a conditional sale contract or language of the instrument. If he do that with Changnon & Company for the purchase he may give the writing in evidence, but not

of a Viele automobile; that on December 7,
1920, Changnon & Co. did not own said Viele
automobile nor any interest therein; that the

The last-quoted statute (C. S. § 7980) was promissory note and conditional sale con construed by this court in the case of Mulkey tract were both tentatively and conditional

v. Long, 5 Idaho, 213, 216, 47 P. 949, 950, ly signed in connection with a proposed

where it was said: transaction, in which Changnon & Co. were “The conclusion, it seems to us, from all to deliver to appellant a new Oldsmobile the decisions, is, simply this: The party pre. sedan, and upon its delivery the Viele auto- senting an instrument which, upon its face, *mobile was to be transferred to Changnon & shows that it has been altered, is required to Co., at which time the note and contract explain such alteration, or at least show that were to be delivered 10 that company; that it has not been altered since it came to his

hands. The parties who made or executed the the Oldsmobile sedan was never delivered, instrument may have made or assented to the the proposed transaction was never consum- alteration before its execution, and yet the mated, and appellant received no considera- holder be entirely unable to prove that fact. tion for the conditiocal sale contract and We think, therefore, that the exigency of the

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statute is complied with when the party pre- ty that would indicate that all were written senting the instrument in evidence has shown by the same person. It is to be noted that that there has been no alteration therein since the dates on which the stamps were canceled, it came to his hands. Galland v. Jackman, 26 to wit, “12/7/20” and “2/7/21" are prior to Cal. 85, 85 Am. Dec. 172; Sedgwick v. Sedg- the date upon which the note was executed, wick, 56 Cal, 213."

as it now appears, to wit, “February 14, Testimony was introduced by respondent 1921." (4) Over the date and amount of in this case that, when the note was for- the note are written the initials “GWT.” warded to it, it was in exactly the same con- A comparison of this writing with the signadition as when request was made that it be ture on the note would indicate that they admitted in evidence, and, in accordance were not written by the same person, and a with the rule laid down in Mulkey v. Long, comparison with the initials “GWT," by supra, the court did not err in permitting it which the two-cent stamps were canceled, to be introduced in evidence.

fails to disclose the slightest resemblance in Havirg determined that the note was prop

handwriting. erly admitted in evidence, we come now to [1] Upon the trial appellant testified that the serious question involved in this case, the note, when he signed it, bore the date of which is as to whether or not the respondent December 7, 1920, and that it was not was a holder in due course. If respondent changed by him; that he did not change the was a holder in due course and not a party amount; that he did not write the initials to the alteration, he could enforce payment “GWT" over the date and the amount; that thereof according to the original tenor of he did not authorize the changes made on the note. If respondent was not a holder in the note; and that the same were made with-. due course, the instrument would be avoided. out his consent or knowledge; that he canC. S. 8 5991. C. S. § 5919, provides that: celed the two-cent stamps on the back of the

"A holder in due course is a holder who has note on December 7, 1920; and that the intaken the instrument under the following con

itials thereon were in his handwriting. No ditions:

evidence was offered by respondent to con“(1) That the instrument is complete and tradict or deny this testimony, or to explain regular upon its face.

or overcome the irregularities appearing up“(2) That he became the holder of it before on the face of the instrument. C. S. & 5992, it was overdue, and without notice that it had provides, inter alia that: been previously dishonored, if such was the fact.

"Any alteration which changes: “(3) That he took it in good faith and for

“(1) The date. value.

“(2) The sum payable, either for principal “(4) That at the time it was negotiated to

or interest. him he had no notice of any infirmity in the

(3) The time

of payment, instrument or defect in the title of the person negotiating it."

or any other change or addition which alters

the effect of the instrument in any respect, is an examination of the note admitted in a material alteration." evidence discloses the fact that the same is not complete and regular upon its face. [2] There is sufficient competent evidence Four irregularities appearing upon its face to show that a change was made in the date. point to this conclusion: (1) Attention is first The change in the date altered the time of called to the date of the note, which appears payment. If the note was dated February as “February 14, 1921.” It is apparent that 14, 1921, the first installment, being due "one an erasure and change has been made. The month after date," would become due March figures "19" are printed. The figure "2" | 14, 1921. If the note was dated December appears in black typewriting. The remain-| 7, 1920, the first installment would become der of the date appears in blue typewriting. due January 7, 1921, in which event the reAll other typewriting on the note has been spondent did not purchase the note before done with a black typewriter ribbon. (2) maturity, and it was not a holder in due An erasure and change has been made in course, for the reason that the only testithe amount of the note, and part of the orig-mony was to the effect that respondent purinal typewriting can still be seen. (3) On the chased the note on or about February 14, back of the note are six two-cent internal 1921. The rule would seem to be that, if revenue stamps, each of which bear the fol- an installment of a note is overdue at the lowing cancellation in ink: “12/7/20 GWT.” time it is transferred, the purchaser takes There is also a ten-cent revenue stamp on

the whole note as overdue paper, and is not. the back of the note, which bears the follow- a holder in due course. Hall v. E. W. Wells ing cancellation, “2/7/21," and initials, which & Son, 24 Cal. App. 238, 141 P. 53; Daniels, are not legible, the ink used in canceling the Negotiable Instruments, vol. 1, $ 787; 8 C. ten-cent stamp being different from that used J. 410, $ 506. In the case of McCorkle v. in canceling the two-cent stamps. A con Miller, 64 Mo. App. 153, 156, it is said: parison of the initials upon the two-cent “The reason of the rule is that, where one stamps with the signature shows a similari- or more of the installments remain due, the

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