Castor v. Bernstein

*705 HARRISON, P. J. The plaintiff seeks by this action to recover damages from the defendant for the breach of a contract entered into between him and the plaintiff’s assignor. In his answer the defendant sets up several defenses, one of which is that prior to the assignment to the plaintiff his assignor, by an instrument executed by him, released the defendant from all claims arising out of the contract alleged in the complaint.- At the trial the plaintiff offered in evidence, the assignment to him and rested. The defendant then offered in evidence the written instrument of release alleged in his answer. The plaintiff objected to its introduction, upon the ground that there had been no proof of its execution, or of the signature of the maker thereof, or of the subscribing witness. The defendant then stating that he proposed to submit the paper to the jury for comparison with the signature to the assignment to the plaintiff already in evidence, as proof of its execution, the plaintiff made the further objection that proof by comparison of writings could not be made entirely by the jury; that the genuineness of the disputed writing must be first shown by a witness. The court overruled these objections, and admitted the paper in evidence, saying that he would let the jury look at it and determine from an inspection whether, in their opinion, the signature was genuine. To this ruling the plaintiff excepted. The defendant then rested, and the court instructed the jury, in substance, that they should find for the plaintiff or for the defendant according as they should find whether the signature to the writing offered by the defendant was genuine or not. The jury rendered a verdict for the plaintiff. Upon motion of the defendant the court granted a new trial, and from this order the present appeal has been taken. 1. The court did not err in admitting in evidence, without any previous testimony of experts thereon, the purported release, and allowing the jury to determine its genuineness by a comparison of the signature thereon with the signature upon the assignment to the plaintiff. To the general rule of the common law that the genuineness of disputed handwriting could not be determined by the court or jury by comparing it with other handwriting of the party, there was one well-settled exception, viz., that if a paper admitted to be in the *706 handwriting of the party, or to have been subscribed by him, is in evidence for some other purpose in the cause, the signature or paper in question may be compared with it by the jury. (Moore v. United States, 91 U. S. 279.) The restriction which the rules at common law placed upon the mode of proving the genuineness of handwriting has in modern days been greatly removed, and in this state the legislature has declared, in section 1944 of the Code of Civil Procedure, that “evidence respecting the handwriting may also be given by a comparison made by the witness or the jury with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge.” Similar statutory provisions have been enacted in other states in this country, and also in England, and, being remedial in their nature, are to be liberally construed. In People v. Molineux, 168 N. Y. 264, [61 N. E. 286], the court entered into an elaborate discussion of the law respecting the proof of handwriting by comparison and other modes (pages 318-330, 168 N. Y., [pages 304-308, 61 N. E.], and held that the object of these statutes is to enlarge, and not to narrow, the rules of the common law. The defendant was not seeking to establish the genuineness of the release by a comparison with exemplars which were irrelevant to the issue before the court, and authorities involving the common-law rule in such cases are inapplicable; but he was availing himself of the means authorized by section 1944 for making-proof of its genuineness. The exemplar with which the jury were directed to make the comparison was already before them and admitted by the plaintiff to be genuine, and, under the definition of evidence in section 1823 of the Code of Civil Procedure, a comparison made by the jury between the two signatures was a “means sanctioned by law for ascertaining the truth” respecting the question of fact presented for their determination—the genuineness of the signature to the release. Such comparison by the jury is in itself legal evidence, upon which alone they may render a verdict. (Williams v, Drexel, 14 Md. 566.) Whether the signature to the release was genuine or not was a question of fact to be determined by the jury, and not by the judge; nor could the judge, by refusing to allow the writing to be submitted to the jury, preclude the defendant *707 from having the jury determine that question of fact. If the defendant had so desired, he could have offered the testimony of experts for the purpose of adding weight to his claim that it was genuine; hut he was not required to do so. It is not to be assumed that he would submit the writing to them for comparison, unless there was, at least, a colorable resemblance to the exemplar already in evidence; but, if he was so disposed, he was entitled to have the jury pass upon the question of its genuineness without the aid of any corroborative testimony. The rule is of long standing that a jury is not required to follow the opinion of experts, but may disregard them entirely and exercise its own judgment in matters of this nature, and by section 612 of the Code of Civil Procedure they may, upon retiring for deliberation, take with them all papers that have been received in evidence in the case, except depositions. But while they will give proper weight to the testimony of experts, as was said by Lord Denman in Doe v. Newton, 5 Ad. & E. 514, “no human power can prevent the jury from comparing the documents with a view to the question of genuineness,” and they will determine the question according to their own judgment. (See, also, People v. Storke, 128 Cal. 486, [60 Pac. 1090].) The provision of section 1944, that “Evidence respecting the handwriting may also be given by a comparison made by the witness or the jury,” clearly indicates that the jury may make the comparison without any previous testimony of a witness. Mr. Green-leaf says (section 578) that, when other writings admitted to-be genuine are already in the case, the comparison may be made by the jury “with or without the aid of experts.” The same rule is given in Wharton on Evidence, sec. 713; 1 Rice on Evidence, 344; Taylor on Evidence, 9th ed., sec. 870; Williams v. Drexel, 14 Md. 566; Rogers v. Tyley, 144 Ill. 652, [32 N. E. 393]; People v. Molineux, 168 N. Y. 264, 330, [61 N. E. 286, 308]; Cobbett v. Kilminster, 4 Fost. & F. 490. 2. It was not necessary for the defendant to prove the genuineness of the signature to the release by the testimony of the subscribing witness, or to account for his absence, before resorting to the mode adopted by him. The code makes no distinction in rank between the various modes in which a writing may be proved, and the provision of section 1944, authorizing the proof of handwriting by a comparison made by the *708 jury is of equal force with the provisions in section 1940, authorizing it to be made by a subscribing witness. Landers v. Bolton, 26 Cal. 406, cited by the appellant, was tried before there was any statute in this state on the subject, and the opinion therein, while referring to the English rule then prevailing, questions its correctness. 3. The release executed by the plaintiff’s assignor is by its terms executed for the benefit of the defendant, and is available for him against the plaintiff’s claim herein. (Civ. Code, sec. 1559.) The instrument itself, being in writing, was presumptive of a consideration, and if the plaintiff would avoid it for want of consideration, the burden was upon him to make such proof. (Civ. Code, sec. 1615.) 4. The aforesaid assignment and release constituted the only evidence submitted to the jury. Their verdict was the result of a comparison made by them of the signatures to the respective instruments. These writings were separate pieces of evidence upon the issue presented by the defendant, and the conflict between them as to the genuineness of the signature of the release was, in legal effect, the same as would have been a conflict between testimony of witnesses in reference thereto. If the court was of the opinion that in its determination of this conflict the jury did not give sufficient consideration to the signature upon the release, and that its verdict—which, in effect, found that this signature was a forgery—was not justified by the evidence, it was its duty to set the verdict aside and grant a new trial. (Bjorman v. Ft. Bragg Redwood Co., 92 Cal. 500, [28 Pac. 591]; Domico v. Casassa, 101 Cal. 411, [35 Pac. 1024]; Mills v. Oregon Ry. Co., 102 Cal. 387, 36 Pac. 772; Newman v. Overland P. R. Co., 132 Cal. 73, [64 Pac. 110].) The court had the same opportunity as the jury to compare the signatures, and to determine whether the one in question was genuine or false; and its determination that the jury had erred in its conclusion, and that its verdict was contrary to the evidence before it, was a matter peculiarly within its province, and is not subject to review. The order is affirmed. Hall, J., concurred.