March 11, 1910.
John McG. Goodale, for the appellant.
Gormly J. Sproull, for the respondent.
The production of the checks by the plaintiff raised a presumption of a valid and intentional delivery of them to her by the maker. (Neg. Inst. Law [Gen. Laws, chap. 50; Laws of 1897, chap. 612], § 35; revised in Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], § 35.) Such delivery operated as prima facie authority to fill up the blanks for any amount. (Neg. Inst. Law, § 33, as amd. by Laws of 1898, chap. 336; revised in Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], § 33.) The learned trial court was, therefore, wrong in holding that it was incumbent upon the plaintiff to prove her authority to fill up the blanks, as the statute imposes the burden upon the defendant to show the agreement, and that its terms have been violated, if that be claimed, and that was the rule at common law. ( Davidson v. Lanier, 4 Wall. 447.) Said section 33 also provides: "In order, however, that any such instrument, when completed, may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time." It seems to me that there can be no presumption one way or the other as to the time within which the blanks were filled up. Therefore, the burden was upon the plaintiff, who asserted it, to prove that the blanks were filled up within a reasonable time. It is alleged in the complaint that the blank checks were delivered on the 22d of October, 1907. The maker died on the 9th of June, 1908. There is evidence which, perhaps, would justify the inference that the defendant saw the checks on the eighth of June in their present condition. Other than that there is nothing to show when the checks were filled up, and certainly from October 22, 1907, to June 9, 1908, is, unexplained, more than a reasonable time. However, the plaintiff could only prove one thing at a time. The checks were excluded upon a ground which the plaintiff could not obviate, and that ruling virtually ended the case. Wherefore, the plaintiff should be permitted another opportunity to prove her case.
The judgment should be reversed and a new trial granted, with costs to appellant to abide event.
INGRAHAM, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.