Olmsted v. Stewart

Per Curiam. The judgment in this case is clearly against evidence, with respect to the handwriting of Enos Stewart to the order. Two witnesses swore that they did not believe it to-be his writing; and that he uniformly wrote his name Steward, instead of Stewart; and the only evidence opposed to this was,, the opinion of the justice from comparing this writing with other writing admitted to be genuine. Whether the judgment ought to be reversed, on this ground, may be questionable. Bui the testimony offered to show that there was not so much due E. Stewart as the amount of the note, ought to have been received. The plaintiff does not stand in the character of an innocent holder of a note, coming into his hands in the regular course of business, before it fell due. He took the note himself, and without making any objections to the statement made by the defendant; he must, therefore, be considered as receiving it subject to the examination to be made by the defendant, as to the state of the accounts between him and E. Stewart. The note must be deemed to have been given with this express understanding and reservation. If the note had not been taken by the plaintiff himself, it would have altered the case. The judgment must, therefore, be reversed. Judgment reversed-.