Cohen v. Teller

Mr. Justice Paxson delivered the opinion of the court, March 1st 1880. There are forty-three assignments of error in this case. I have examined them all patiently and laboriously. To discuss them in detail would extend this opinion to an unreasonable length. Nor is it necessary. While the record abounds in exceptions, many of the errors assigned have been cured by the subsequent rulings of the court; evidence improperly excluded having been afterwards admitted, and evidence improperly admitted subsequently stricken out. The suit below was an action of assumpsit, brought by August Cohen, the plaintiff, against Solomon Teller, the defendant, as endorser of a promissory note made by the firm of M. Kuhn & Co.; one of the makers was a son-in-law of the defendant. The latter alleged that his signature as endorser was a forgery. The case went to the jury upon this issue. The record is voluminous and not very clear. This was perhaps due in part to the fact that some, matters not pertinent to the issue wore allowed to be introduced upon the trial, the consideration of which occupied much time, and may have misled the jury. The force of this observation will be the more readily understood when the fact is stated that the trial in the court below upon the single issue of forgery occupied nearly one month. The contention of the plaintiff was that even if the endorsement was a forgery, yet the defendant was estopped by his acts and declarations from setting up the forgery as a defence. Instead of confining the case to the particular note in suit, evidence was offered and admitted to show that a large amount of similar forged paper had been issued, which, it was contended, the defendant had recognised or paid. All of this evidence should have been excluded; the only effect of it was to consume time, and confuse if not mislead the jury. It was not competent to show that the defendant was estopped from sotting up the defence of forgery to the note in suit by proving that he had paid other forged notes, or recognised them as valid. It would be a harsh rule to hold that a man who had paid one or more forged notes to save the honor of the makers, thereby rendered himself liable upon all other forged paper which the makers may have issued. As the case must go back for another trial, we deem it proper to make this reference. We will now consider such of the assignments of error as require notice. The first, second and third allege the court erred in excluding the evidence tending to show that defendant’s admissions in regard to the note in suit had been communicated to the [128] plaintiff. The ground of the alleged estoppel was that the defendant had recognised the note with its endorsement as valid; that this fact had been communicated to the plaintiff, who bought the note upon the faith of it. The learned court subsequently permitted the plaintiff to testify that the witness David ICohn had told him what had been said by Cansler as to the defendant’s admissions, and to this extent the error was cured. But if it was competent to prove this by the plaintiff, it was also competent to prove it by Kohn, and the exclusion of his testimony upon this point deprived the plaintiff of the benefit of Kohn’s corroboration. The fourteenth assignment is sustained. The letter-press copies of defendant’s letters were not competent evidence to establish a standard. When a writing is introduced as a standard to enable a jury to make a comparison of handwriting, the standard itself must not be open to dispute. It must either be admitted to be genuine or established in the cause. To authorize the admission of a writing offered as a test or standard, nothing short of proof by a person who saw the party write the paper, or of an admission by the party of its genuineness, or evidence of equal authority, is sufficient: Baker v. Haines, 6 Whart. 284; Depue v. Place, 7 Barr 428 ; Travis v. Brown, 7 Wright 9. Here there was merely a copy — a press copy, it is true — of the nature of a fac simile, but not necessarily exact, as the spreading of the ink in such copies often obliterates the fine lines of a handwriting, though substantially preserving its original form. It is manifest such copies would be an unsafe standard. I know of no authority for their introduction, and upon principle they are inadmissible. It is difficult to see why this evidence was introduced, as a reliable standard had previously been given in evidence. The portions of the charge embraced in the fortieth and forty-first assignments, considered alone, are not free from criticism, but when read in connection with the whole charge, of which they form a part, are not seriously objectionable, at least, not to the extent of justifying a reversal. But the case must go back for the other reasons above stated. The remaining thirty-seven assignments do not require discussion. Judgment reversed, and a venire facias de novo awarded.