Lampe v. Franklin American Trust Co.
Facts
Plaintiff sought to recover on a $9,900 note allegedly executed by decedent Birkenback. The note, however, showed visible erasures, obliterations, different inks, and apparent changes to the payee and signature area, and defendants claimed it had been materially altered from a note signed for some other purpose. Plaintiff testified that Birkenback signed and delivered the note and consented to the erasure of an added signature and to insertion of plaintiff as payee, while defendants argued plaintiff was incompetent to testify under the dead man's statute and that the altered note was invalid. Defendants had also introduced in an earlier trial a transcript of plaintiff's prior testimony about the same note transaction taken in another probate proceeding.
Issue
Did defendants waive plaintiff's incompetency under the dead man's statute by introducing his prior testimony about the note transaction, thereby making him competent to testify to the whole transaction? And, if so, was plaintiff's evidence sufficient to submit the altered note to the jury, notwithstanding visible suspicious alterations, and were the plaintiff's jury instructions erroneous?
Rule
When the representative of a deceased party offers the surviving party's prior testimony concerning the transaction in issue, the statutory incompetency is waived for all purposes as to the whole transaction and cannot be limited to selected parts. A note that appears on its face to have been altered in suspicious ways carries no presumption of integrity; the proponent must first offer evidence tending to show that the alterations were authorized or assented to, and although such evidence plus the note may make a jury case, the proponent retains the burden of convincing the jury that the altered note is valid. An alteration that changes the rights, duties, or obligations of the person charged is material, including a change from a partnership obligation to an individual's personal obligation.
See the holding & full analysis
Create a free KwikCourt account to unlock the rest of this brief — and practice the case.
- The court's holding and reasoning
- Doctrine tests, pitfalls & exam hypotheticals
- 10 practice questions + 4 AI-graded essays on this case
Test yourself
After introducing that transcript, the executor objects when Nina takes the stand and begins testifying about the loan transaction, arguing she is incompetent under the dead man's statute. How should the court rule?