(concurring). The plaintiff brings this action to recover from defendant on a promissory note for $300 and interest from December, 1912. In May of that year Lilley sold and delivered á team of horses to the defendant on his agreement to pay or give his note for the same to the bank which had a mortgage on the team. Defendant put off making payment or giving a note until December, when he claims some reduction from the price because one of the horses became diseased. The seller insisted that he was not at fault, and that defendant should go and make the note, which would give him a reduction of interest from May until December. The defendant went to Stutsman County Bank at Courtenay, and then signed the note, which was mailed to the plaintiff. He testifies that when he signed tho note it was in this form:
No......................Wimbledon, N. D., Dec. 21, 1912.
One year after date, for value received, I promise to pay to the Merchants National Bank, of Wimbledon, N. D., or order, three hundred dollars, $300, at the Merchants National Bank in Wimbledon, N. D., with interest payable annually at the rate of......per cent per annum to maturity, and twelve per cent per annum after maturity until paid. Interest not paid at maturity shall bear interest at the rate of twelve per cent per annum until paid.
He testifies that when he signed the note the word “twelve” was stricken out, and in place of it there was no figure “ten (10)” which now appears for the per cent. He testifies that in the fall of 1913, he saw the note at the bank in Wimbledon, and the figure “10” had not been inserted, and. that he never gave any permission or authority to insert the figure “10.” He does not testify to any agreement with the seller of the horses or with the bank that he was not to pay interest on the note until it became due. He does not in any way contradict the testimony showing that he was to make settlement for the horses at the time of delivery, and that by putting off settlement he obtained the use of the horses during the whole season of 1912 without paying anything, Certain it is there was no bargain and no thought in the mind of defendant himself or of any person that he should have the use of the horses for a second season without paying interest, and *627now it seems that he has had the use of the horses for five or six years without paying or offering to pay a dollar, and, of course, that does not mark him as an honest and truthful man. Truth and honesty are’ virtues which go together.
Mr. Beers, cashier of the plaintiff bank, testifies:
The note came to the bank by mail. I was there when it was received and it is the same now as when it was received.
Q. Are you certain it is the same as when received?
A. I am very certain.
Hence, the weak and improbable testimony of defendant is flatly contradicted by that of the cashier, as well as by the facts and circumstances and the presumptions in favor of the note. His position is the same as if he had gone to the bank and borrowed $300 and then refused payment on the ground that when he signed the note the printed word “twelve” was crossed out and in lieu thereof no other word or .figure was inserted to indicate the rate of interest. .Now in all blank promissory notes used at the banks the printed rate of interest is 10 per cent, but the 10 is usually crossed out and a lower rate inserted.
If the maker of a note may avoid payment by swearing that at the time of signing the notes the printed 10 was crossed out and no other figure inserted, while the banker swears to the contrary, then nearly all persons may safely refuse to pay their bank notes. In this case after crossing out the twelve, the note contains a promise to pay $300, “with interest payable annually at the rate of......per cent per annum till due.”
Now, all that is said concerning the payment of interest should have been crossed out if the defendant was not to pay any rate of interest. If the defendant signed the note, leaving the rate blank and saying nothing concerning it, he thereby authorized the bank to insert the usual interest rate. And such insertion was not an alteration of the note. The note in question is fair on its face, and all the facts and presumptions are in its favor. Banks are not loaning, money or taking notes due in a year without interest.
In this case defendant was legally and morally bound to pay interest on the price of the horses from the date of the note, and if he *628thought to put off on the bank a note payable in a year without interest then he was guilty of dishonesty and fraud.
On these matters and in regard to the burden of proof the instructions of the court were clearly erroneous. The court also erred in refusing to give the jury the following special instructions, which wera duly requested:
“The presumption of innocence and fair dealing among men is so persuasive that a situation which violates it calls for evidence of a more clear and satisfactory character than one that does not involve moral turpitude or the commission of a criminal offense,
“Where a party seeks to avoid an instrument on the ground of an alteration, he must make out his case by clear and convincing testimony, sufficient to convince the mind of a reasonably prudent and cautious person, especially when the change would amount to a crime.”
In this case when the answer raised a question concerning the alteration of the note, the plaintiff should have added to his complaint a cause of action counting on the original purchase price of the team,