This case is again before us on motion for a rehearing, which is asked for on the theory that we have overlooked and failed to consider certain evidence contained in the record, which it is claimed would have required us to affirm the judgment of the district court.
*245It is practically conceded in the briefs in support of the motion, and rightly, we think, that the only question left for determination is whether'or'not the word “gold” was stamped in the notes and mortgage sought to be foreclosed in this action before they wei’e executed by the defendant. From the citations of authorities it seems quite evident that counsel have overlooked the fact that, under the statutes and the rules now in force for the trial of appeals in equity case's, we are not at all bound by the findings and judgment of the trial court, but must try such cases cle novo, reach our own independent conclusions as to the weight, credibility and effect of the evidence, and render our judgment without reference to the conclusion reached by the district court, or the fact that the record contains some evidence to support it. Grandin v. First Nat. Bank, 70 Neb. 730; Naudain v. Fullenwider, 72 Neb. 221; Michigan Trust Co. v. City of Red Cloud, 69 Neb. 585; Winston v. Armstrong, 74 Neb. 604; Omaha L. & B. Ass’n v. Hendee, 77 Neb. 12; Roe v. Howard County, 75 Neb. 448, 5 L. R. A. (n. s.) 831; Stocker v. Nemaha County, 72 Neb. 255.
Before considering the evidence, it is necessary to dispose of the defendant’s contention that the plaintiff should have no standing in this case because .she has twice changed her theory as to when the word “gold” was stamped in the mortgage in question. It sufficiently appears that the mortgage was given to the Lombard Investment Company, and several months afterwards was sold to the plaintiff, who resides in New Hampshire. She personally knew nothing of the parties or the circumstances of the. giving and making of the mortgage, and upon default of payment instituted foreclosure proceedings. Mrs. Foxworthy, the principal defendant, pleaded an alteration in the notes and mortgage subsequently to their execution by her. When the action was commenced, the Lombard Investment Company had failed, its managing officer in Lincoln was dead, and its employees were scattered. Upon the first trial in the court below, the only evidence upon the question of the alteration of the instruments was *246furnished by the defendant. Not being able to meet this evidence, and having no means at hand at that time of showing that it was untrue, the plaintiff' changed her theory of the case, and filed an amended petition, in which she admitted the alteration by the insertion of the word “gold” before the word “dollars,” thereby making the notes, and mortgage payable in gold. But she alleged that such alteration was not made by her, that it was an unauthorized .act by some unknown person, and sought to recover upon that theory. Later on, however, John West, the son of the. manager of the Lombard Investment Company at Lincoln, the person who prepared the notes and mortgage in controversy, was located, and the residence of Mr. Jones, the former cashier of that company, was ascertained, their evidence was procured, and it was thus made apparent to the plaintiff that the word “gold” was stamped into the notes and mortgage prior to their execution. Thereupon, she again changed her theory of the case, withdrew her amended petition, and elected to stand upon her original pleading.
Much fault is found because in our original opinion no special attention was given to the amended petition, which was offered in evidence, and by which the alteration of the notes and mortgage was admitted. We have not overlooked the admission, but did not mention it because we deem it quite immaterial. The plaintiff, when she filed her amended petition, had no personal knowledge of the controverted facts, and her admission was made by counsel and under circumstances which led her to believe that it was true, as.claimed, that the instrument had been altered, as sbe then inferred, by some one other than herself, and without her knowledge. However, when she discovered a different state of affairs, she promptly withdrew the amended pleading, and the admission thus made should not be allowed to prejudice her substantial rights.
We have carefully read the evidence tending to show the alleged alteration, all of which is given by Mrs. Foxwortliy and one Miss Dowden, both of whom have testified on two *247different occasions in this case. On the first occasion, botli of these witnesses testified that the notes and' mortgage were signed on the 13th day of October, and the money was immediately turned over to Mrs. Foxworthy by the cashier, Mr. Jones. On that occasion they "both said that Miss Dowden read over the notes and mortgage to Mrs. Foxworthy, who did not read them; that Mrs. Foxworthy only looked over Miss Dowden’s shoulder to see that the amount written therein was $800; that beyond that she did not read or examine the papers. They also, by their evidence given at that time, conveyed the idea that Mr. Jones, the cashier, prepared the notes and mortgage. When they testified the second time, which was after the depositions of West and Jones had been taken, they both stated that the notes and mortgage were signed about the 1st of September, some six weeks previous to their date. On the second occasion they did not know who prepared the .notes and mortgage, and they testified at that time that Miss Dowden and Mrs. Foxworthy both read over the papers carefully and reread several portions of them. For these and other reasons, which will be presently given, we are not impressed with the correctness of their statements.
Again, the evidence in this case shows that Mrs. Fox-worthy paid nine of the coupon notes, in each of which the word “gold” was plainly stamped. Had she been the very careful, cautious business woman which her testimony taken the second time would lead one to infer she was, it would seem that, when she paid the coupons, she would have discovered the fact that they were payable in gold. There are other parts of Miss Dowden’s testimony that seem somewhat peculiar. The evidence clearly shows that it was the custom, and had been for some time, for the Lombard Investment Company to make all of its loans payable in gold, and that the word “gold” was stamped before the word “dollars” in all of its notes and mortgages. It appears that Miss Dowden was soliciting agent for that company. Yet she stated that the word “gold” *248was not in the notes and mortgage, and, if it had been, it would have startled her, and would have scared her so that she would not have allowed Mrs. Foxworthy to sign them. This testimony appears to us to be very inconsistent with the position she was holding. As above stated, she was the agent of the Lombard Investment Company, and, if she was in the habit of reading its notes and mortgages at all, she must have been familiar with the fact that they were all made payable in gold; So we are unable to see why she would have been alarmed if she had seen the word “gold” before the word “dollars” in the notes and mortgage in question. Neither do we see any ‘reason for her statement that she would not have allowed Mrs. Foxworthy to sign them if made payable in gold. In her second deposition, after it had been discovered that John West was the man who drew the notes and mortgage, she testified that she had a recollection of him as a schoolboy, while it is conclusively shown by other evidence that he was a young man about 23 years of age at that time, and had been in the employment of the Lombard Investment Company in its Lincoln office for a long time prior thereto. Under such circumstances, the evidence of Miss DoAvden and Mrs. Foxworthy as to the alleged alteration is far from convincing. Upon the other hand, Mr. West testified clearly, explicitly and positively that he prepared the notes and mortgage in question, and that the word “gold” was stamped into them prior to their execution. Mr. Jones, the cashier, also testified that it was his duty to examine all of the papers prior to the payment of any money upon them; that he took Mrs. Foxworthy’s acknoAvledgment of the mortgage in question; that it Avas his custom, after he had examined notes and mortgages, to place thereon the letters “O. K J,” indicating that he had' examined them and found them correct. This mark appears upon the mortgage and the principal and coupon notes; and from this Mr. Jones testified that he examined the papers at the time he took the acknowledgment of the defendant, and that he kneAV the word “gold” appeared *249therein at that time. There is also evidence of other employees that it was the custom of the Lombard Investment Company to make all of its loans payable in gold. Upon this alone it appears to us that the clear weight of the evidence is in favor of the plaintiff, and we have no hesitancy in finding that the word “gold” was stamped in the notes and mortgage prior to their execution.
There are still some other facts which should be mentioned, and which we think are conclusive of the question. An examination of one of the coupons, which appears in the record, marked “Exhibit 4,” under a microscope, discloses that the last part of the words “twenty-four and no-100,” immediately preceding the words “gold dollars,” overlaps the word “gold” which is in red ink, thus clearly showing that those words were written after the word “gold” was stamped in the instrument. It is not conceivable that Mrs. Foxworthy signed the notes before they were filled out, and, if they were filled out prior to her execution and signature, it is clear that at least one of the coupons had the word “gold” stamped in it at the time she signed it. This being so, it may be presumed that all were so stamped.
Again, an examination of the notes and mortgage shows that the written portions thereof are underscored with red ink, and that the spaces between the written and the printed parts of the mortgage are filled with red-ink lines. The words “800 and no-100” are written in the middle of a blank line, and the first and last parts of this line are filled with red-ink marks. At first Mrs. Foxworthy testified that the red-ink lines were not in the instrument when she signed it; but afterwards modified her testimony by saying that she did not know about it.
For the foregoing reasons, together with others suggested by the evidence, we are of the unanimous opinion that the defendants failed to show by a preponderance of the evidence any alteration in the notes and mortgage in question. We therefore conclude that our former opinion is right, and the motion for a rehearing is
Overruled.