Stewart v. Gleason

Opinion by Rice, P. J., When a statute or rule of court provides that the execution of a promissory note in suit shall be taken as admitted unless it is denied by affidavit, the effect of filing such affidavit is simply to cast the burden of proof on the plaintiff; it does not raise aprima facie presumption of forgery which he must over [329] come, nor does it require him to furnish more evidence or a higher grade of evidence than he would be required to furnish if the defendant had simply pleaded the general issue and there were no statute or rule of court upon the subject. If he furnishes evidence, which would warrant a jury in finding that the note was signed by the defendant or by some one authorized by him, or that it purports to be signed by the defendant and was delivered by him, as and for his note, to the payee named therein, the plaintiff is entitled to have the note admitted in evidence. Whether in a strict and scientific sense an extrajudicial admission is to be regarded as evidence, or “ simply as the concession of a fact on which the opposite party relies to make out his case,” there can be no question, that, if the law does not prescribe more formal proof, the plaintiff in an action upon a promissory note may make out a case which he is entitled to have submitted to the jury by proof of the extrajudicial admission of the defendant to the effect that the note was given by him. If authority is needed for so plain a proposition, it will be found in West Phila. Nat. Bank v. Field, 143 Pa. 473. If the admission was noncontractual, that is, if it was not made under circumstances to create an estoppel, it may be rebutted by proof that the note was not given by the defendant, but is a forgery. But even though such evidence be adduced by the defendant, still the question is for the jury; it is for them to determine whether the fact be as stated in his admission or as stated in his testimony. This is the general rule. Possibly an exceptional case might arise where, although the note was properly received in evidence upon such admission, it would be the duty of the court, in view of the overwhelming evidence of forgery adduced by the defendant, to give binding instructions in the latter’s favor. But it is clearly shown in the opinion of the learned judge overruling the motion for new trial that this is not such a case. It is thus seen that the case, as it is presented here, turns upon the question raised by the second assignment of error; if that is not sustained, the others must fall with it. But, say counsel for the appellants, an extrajudicial admission is not sufficient to carry the question of the genuineness of a note in suit to the jury, nor is the admission receivable in evidence, unless it be shown that at the time the defendant made it the note was exhibited to him. He argues, and it is not [330] to be denied, that in permitting proof of such admission to take the place of the proof of handwriting which is usually produced there is danger of recovery upon a forged note corresponding in date, amount and other particulars with a genuine note of the same description which he may have given. It, indeed, would be a hardship, if a party admitting the genuineness of a note not exhibited to him were not permitted to show that the note in suit is a forgery, and that in making the admission he had in mind a genuine note he had given. But as we have already stated, and as the court below clearly and emphatically instructed the jury, an admission made under such circumstances is not conclusive, but is always rebuttable by proof of mistake. Thus the danger of receiving this kind of evidence is minimized, and it is within the power of the party to avoid it altogether by refusing to admit the genuineness of a note concerning which he is asked, unless the note is exhibited to him. The principal cases cited by the learned counsel in support of his contention are, Shaver v. Ehle, 16 Johns. 201, Palmer v. Manning, 4 Den. 131, and Minard v. Mead, 7 Wend. 68. In the first case there was a subscribing witness to the note. Instead of calling him to prove the signature of the maker, it was shown that the holder applied to the defendant for payment but did not show him the note, nor did he state the amount or date of it, and that the defendant answered that he had given a note to Holmes, the payee, and said he would pay it at a future day. In the second case the identification was more complete but it was held that “ evidence that defendant had executed a ” (the word “ a ” was underscored by the opinion judge) “ note answering the description of the note produced on the trial, without other proof of identity, is not sufficient to submit to a jury to pass upon the question whether the defendant executed the note produced.” In the third case the court gave binding instructions for the plaintiff, and it was held on review that this was error; that even if binding instructions should not have been given the other way, the question as to the identity of the note ought, at least, to have been submitted to the jury. This is as far as the case goes upon this point. All of these cases are distinguishable from the present in their facts — Palmer v. Manning more clearly resembles it than the others — and even if we were bound to accept them as binding authority for what was [331] actually decided in them, we think they would not require us to hold that an admission, no matter how explicit, is insufficient to carry to the jury the question of the genuineness of a note which was not actually exhibited to, and inspected by, the defendant at the time he made the admission. On the other hand, in Rowley v. Ball, 3 Cowen 303, where Shaver v. Ehle was distinguished, and in Pentz v. Winterbottom, 5 Den. 51, it was held that the identity of the note to which the admission in each case related was established with reasonable certainty without proof that the defendant had the note before him at the time he made the admission. We refer to the two last cases for the purpose of showing that proof of the inspection of the note by the party making the admission is not absolutely indispensable. In Bowen v. De Lattre, 6 Wh. 430, the suit was brought on two promissory notes against the maker. The defendant pleaded non assumpsit, and on the trial required proof of the execution of the notes. The plaintiff not having a witness at hand competent to prove the execution, offered in evidence for that purpose the affidavit of defense filed under the act of 1835, in which the defendant expressly stated that he gave the notes sued upon, of which copies had been filed in the cause. This was held to be sufficient to warrant receiving the notes in evidence and to carry the question of execution to the jury. The decision was not put upon the ground that under the statute or the rule of court proof of that fact was dispensed with by the affidavit, but upon the ground that the affidavit of defense was receivable in evidence as an admission-of a party to the suit against his interest. Surely an admission of the genuineness of a note based on the knowledge which the party obtained by reading a copy of it is of no greater probative value than an admission based on the knowledge he obtained by having the note read to him. It seems to us that the case is directly in point. A similar ruling will be found in Nichols v. Allen, 112 Mass. 23; and in Smith v. Witton, 69 Mo. 458, it was held, that “where evidence is offered of an admission by the party denying the execution of the note that he did execute a note to the party asserting its genuineness corresponding in date and amount to the note produced, it is receivable as tending to establish the fact; especially so where the consideration for which the note was given is also stated.” [332] See also Hilborn v. Alford, 22 Cal. 482. We agree that not every casual statement of a party to the effect that he had given a note corresponding in some particulars with the note in suit will dispense with the ordinary proof of execution. If the note was not shown when the admission was made, an admission referring to it by the amount alone, or by the name of the payee alone, is not enough, although proof of such admission may be receivable as cumulative evidence. But in the present case the admission was not made casually or without premeditation, or under eircumstaifCes which may have induced the defendant to suppose that it would not be used against him. He was told that the plaintiffs desired to discount it, if it was the defendants’ note. The note was read to him, and when the plaintiffs’ agent, not content with his answer that the defendants had given such a note, pressed for a statement whether the note, evidently referring to the note he had read to the defendant, was “all right,” the latter answered, “Yes, it is all right.” We are of opinion that an admission, made under such circumstances, of the genuineness of a note read to the defendant, is sufficient to warrant the court in receiving the note in evidence, and in submitting the question of execution to the jury, even though the note was not actually exhibited to, and inspected by, the defendant at the time he made the admission. The facts are more fully stated in the clear and convincing opinion of the learned judge below overruling the motion for new trial. For the reasons there given, in connection with what we have said, the assignments of error are overruled and the judgment is affirmed.