Houston & Texas Central Railroad v. Chandler

Gould, Associate Justice. The effect of the sworn plea of non est factum was to require the plaintiff to prove the execution of the subscription list sued on as at common law. (Brashear v. Martin, 25 Tex., 203.) There being no subscribing witness to this instrument, and it being conceded that the signature of defendant was not in his handwriting, it was competent to show that the defendant “ spoke and acted in a way that amounted to an acknowledgment” that the instrument was his act, and that it was fairly inferable that it was executed by his authority. (Hill v. Scales, 7 Yerg., 410; Sigfried v. Levan, 6 Serg. & R., 311; Mapes v. Leal’s Heirs, 27 Tex., 349; 2 Greenl. on Ev., sec. 296.) One of the grounds on which the instrument sued on was objected to and excluded, was that the evidence adduced, if it proved anything, only proved a ratification, and that there were no pleadings to let in proof of a ratification. The petition contained the ordinary averments of the execution of the instrument, and was, we think, sufficient, when a proper basis for secondary evidence was laid, to admit of [420] evidence of an acknowledgment or ratification, express or implied, without further averment. The plea of non est factum relates to the time of pleading, and under it the defendant may show that the instrument “ was made void by matter subsequent to its execution.” (2 Greenl. Ev., sec. 300; 1 Chit. Plead., pp. 483, 484.) So a subsequent acknowledgment or ratification, although the instrument was signed originally without authority, is sufficient to establish the issue raised by the plea of non est factum in favor of plaintiff. (2 Greenl. Ev., sec. 296; Hill v. Scales, 7 Yerg., 410; Hall v. Phelps, 2 Johns., 451.) A ratification relates back to the inception of the transaction, and makes a deed as obligatory as if originally made by the party, or by his authority. (Brock v. Jones, 16 Tex., 465.) The particular facts relied on in evidence to establish the subscription list as binding the defendant, were not required to be averred. If, however, the rule were different, the defendant, in his plea of non est factum, specially denied a ratification, and thereby made the evidence admissible. The subscription list was also objected to and excluded on the ground of the insufficiency of the evidence to establish it. The evidence was that the signature was not in defendant’s handwriting, but tended to establish that defendant was one of a committee to procure subscribers; that he attended a meeting of those who had subscribed, and expressed a willingness to close his subscription by note. As secondary Or circumstantial evidence tending to show that the defendant had so acted as to impliedly acknowledge himself one of the subscribers, our opinion is, that it was sufficient to require the admission of Hie instrument in evidence. It is to be observed, that the single issue in this ease was the execution of the instrument sued on, and that the question passed upon by the court was not as to the sufficiency of the evidence to establish the execution conclusively, but as to its sufficiency to establish it prima fade, so that the main issue of fact might be passed upon. Mr. Greenleaf says: “If there [421] is any evidence, however slight, tending to prove the formal execution of the instrument, it is held sufficient to entitle it to go to the jury.” (2 Greenl, Ev., sec. 295.) Says Justice Gibson: “ On the plea of non est factum, therefore, whenever there is a spark of evidence of sealing and delivering, the court are bound to permit the instrument to be read, for it is not for them, but the jury, to judge of the fact.” (Berks. T. R. v. Myers, 6 S. & R., 15.) In another case in the same volume of Pennsylvania reports, it is said: “ So, when the execution is to be made out by facts and circumstances, it is admitted, not because the court draw any conclusion of the fact in issue, but because some evidence is offered from which the jury might presume the fact in issue —the sealing and delivery of the bond.” (Sigfried v. Levan, 6 S. & R., 312.) The facts and circumstances in evidence sufficiently tended to establish the instrument sued on as the act of defendant, to entitle the plaintiff to have it admitted in evidence and to have the issue of fact submitted to a jury or passed upon by the court, substituted for a jury. Bor the error in excluding this instrument, the judgment is reversed and the cause remanded. Beversed and remanded.