Yarborough v. Trust Company.

CONNOR,, J., after stating tbe case: There are a large number of exceptions to bis Honor’s ruling in tbe record. In defendant’s brief several are abandoned or not relied upon. Tbe first exception discussed in tbe brief is number eleven in tbe record. Mr. Cunningham, tbe cashier of defendant, being examined, testified that be paid on 23 December, 1904, a check for $1,200, signed by Amanda Yarborough, payable to tbe National Bank of Fayetteville. He was asked bow the signature to tbe check compared with tbe signature of plaintiff to a deed admitted to be genuine. Neither check nor deed was produced, and witness bad not qualified as an expert. Plaintiff’s objection was sustained, and defendant excepted. Later in tbe examination of this witness, be qualified himself as an expert, when be was permitted to express bis opinion that tbe signature to tbe check was tbe same as that to tbe complaint, saying: “It is tbe same band-writing.” 'Whatever force there was in tbe defendant’s exception to tbe rejection of tbe testimony is clearly dissipated by tbe admission of tbe same evidence after tbe witness bad qualified as an expert. We cannot concur with tbe ingenious argument of defendant’s counsel that tbe opinion of a witness before qualifying as an expert is of more value, or that a jury would so regard it, than after qualifying as such. There may be a prejudice in tbe minds of jurors against tbe testimony of experts in bandwriting, but tbe Court could hardly take note of it, as a matter of law. As neither tbe check nor tbe deed were in tbe bands of tbe witness at tbe time tbe question was asked, so that if be bad expressed an opinion, he could have been cross-examined, it is exceedingly doubtful whether bis Honor’s ruling was not correct. However that may be, tbe defendant bad tbe full benefit of tbe opinion of tbe witness. Tbe exception cannot be sustained. *381 Tbe next exception discussed in tbe brief is pointed to bis Honor’s ruling in regard to tbe admission of certain portions of tbe answer. Tbe record shows that tbe sections of tbe answer involved in tbe exception were introduced by defendant. It is insisted in this Court that tbe plaintiff introduced them. Counsel agree tbat we may so consider tbe record. His Honor admitted sections four and five of tbe answer, “except as to parts containing legal conclusion and hearsay.” Defendant contends tbat by excluding these portions of tbe answer tbe jury were misled, or, as stated in tbe brief, “Tbe portions admitted by tbe Court were doubtless construed by tbe jury to be an admission on tbe part of tbe defendant of its liability to tbe plaintiff, whereas if tbe entire paragraph bad been admitted it would have appeared otherwise.” An examination of tbe language of tbe two sections shows that they do not allege any facts which could, to any material extent, affect tbe real question involved in tbe issues. Tbe only questions to be passed upon by tbe jury were whether tbe plaintiff signed tbe check and, if not, whether she bad ratified tbe payment of her money to her husband. Tbe sections of the answer made no admission in respect to either of these issues. Tbe purpose of tbe pleader was to set up an independent defense by suggesting tbat, conceding tbe plaintiff’s contention, which was in other parts of tbe answer denied, her remedy was against tbe Eayetteville bank. This was not insisted upon, for tbe manifest reason tbat it was not available. If defendant paid out plaintiff’s money on a forged check, it could not cast upon her tbe duty of seeking to recover it from tbe corporation which received it. It is well settled that a bank is presumed to know the signature of its customers, and if it pays a forged check, it cannot, in tbe absence of negligence on tbe part of tbe depositor, whose check it purports to be, charge tbe amount to bis account. 5 Oyc., 544. We cannot perceive bow tbe admission of a part of tbe paragraphs and the rejection of tbe remainder, *382 which contained only conclusions drawn by defendant, could possibly mislead the jury upon the real issues. The defendant’s contention in regard to the admission of fragmentary portions of a pleading is correct, but, as we have seen, does not apply to this case. The other exceptions are pointed to his Honor’s charge. In response to the prayer that if the jury should find that defendant paid the individual check of the plaintiff duly presented to it in the ordinary course of business, it should answer the first issue “Yes,” his Honor instructed the jury that- if the defendant had shown by the greater weight of the evidence that plaintiff signed the check, they should answer the issue “Yes.” We think this was a substantial compliance with the prayer and the correct statement of the law. The defendant having admitted the deposit, the burden was upon it to show payment. In response to the prayer that, “If the jury shall find from the evidence that the plaintiff during the month of January, February or March, 1905, had knowledge that her money, to-wit, $1,200, had been transferred to the National Bank of Fayetteville, and stood upon its books to the credit of J. R. Yarborough, her husband, and she took no steps to have the same transferred to her name or for her use, but acquiesced in said money remaining in her husband’s name, that she thereby released the defendant from all liability to her,” his Honor charged the jury: “If she dealt with the fund, that is, the $1,200, after it was deposited here in her husband’s name, knowing it was in her husband’s name, or if with a knowledge that the fund was deposited in the name of her husband she allowed it to remain there in his name for any length of time, and took no steps to have the same place'd to her individual credit, these are matters which the jury may consider in determining whether she ratified the deposit in her husband’s name or not, and after considering these, and all evidence bearing on this question, if the jury are sat- *383 isfiecl by the greater weight of the evidence that she recognized and adopted the deposit in her husband’s name, they will answer the third issue, ‘Yes/ and if not so satisfied, they will answer it ‘No.’ ” We think this a correct response to the prayer. We have examined the other exceptions and find that his Honor substantially and, -we think, correctly instructed the jury in response to the phases of the case presented by them. There was evidence to the effect that the plaintiff’s husband drew the money and had it put to his individual credit in the Bank of Fayetteville. Plaintiff testified that she had no knowledge or information in regard to his conduct until .February, 1905, when he notified her that he had done so and had abandoned her. She denies positively that she signed the check or had any knowledge thereof prior to that time. In regard to the alleged ratification, the testimony was conflicting. We think that his Honor correctly left the decision of the question to the jury. Upon an examination of the entire record, we find No Error.