Davis v. Meenan

Sanderson, J. This is an action of contract on a negotiable promissory note in which the plaintiff as holder seeks to recover against the defendant as maker. The answer put in issue the genuineness of the defendant’s signature. The defendant objected to the introduction in evidence as a standard of her handwriting a mortgage deed alleged to have been signed by her and also to the introduction of the note on which the action was based. The certificate on the mortgage deed signed by the notary public was in part as follows: "I, an officer authorized to take acknowledgments of deeds according to the laws of the state of Massachusetts, hereby certify that Mary E. Meenan, to me personally known, this day acknowledged before me that she executed the foregoing mortgage.” Following the signature was the notary’s official seal. Attached to the mortgage deed was a certificate from the Commonwealth of Massachusetts stating that the notary public was duly appointed a commissioner to administer oaths. The mortgage deed contained a reference to a note with the same number, date, rate of interest and amount payable as the note upon which the plaintiff declared in this action. The date of the mortgage deed was May 24, 1926, and the date of the note was August 17, 1925. No other evidence was introduced. The judge refused the defendant’s requests for rulings to the effect that the finding should be for the defendant; that there is not sufficient evidence to find that the signature on the note was that of the defendant; that the introduction of a mortgage showing a signature upon which an acknowledgment has been taken by a notary public is not evidence that the writing in question is the signature of the defendant. The judge of the Municipal Court found for the plaintiff and reported the case to the Appellate Division, which ordered the report dismissed. A standard of handwriting may be proved by circumstantial or any other competent evidence, and it is for the trial judge to decide in the first instance whether there is sufficient evidence to permit the standard offered to be introduced in evidence. "So far as his decision is of a ques [315] tian of fact merely, it must be final, if there is any proper evidence to support it.” Commonwealth v. Coe, 115 Mass. 481, 505. Commonwealth v. Tucker, 189 Mass. 457, 474. Commonwealth v. O’Brien, 254 Mass. 86. Taylor-Wharton Iron & Steel Co. v. Earnshaw, 259 Mass. 554. The evidential value of circumstantial proof may be left to the fact-finding tribunal. Newton Centre Trust Co. v. Stuart, 201 Mass. 288, 292. The identity of the defendant as the person who appeared before the notary public is established by the statement in the record that the “mortgage deed was sworn to by the defendant before a notary pul> lie of the Commonwealth of Massachusetts.” We assume that the statement that the deed was sworn to by the defendant was intended to mean that she acknowledged it. G. L. c. 183, § 30, provides that the acknowledgment of a deed shall be by one or more of the grantors and sets forth in the appendix to that chapter the forms which may be used. If a person whose name purports to be signed to a deed either swears to it or acknowledges it before a notary public, that is evidence from which the judge could infer that she signed the document. This inference is strengthened by the absence of any evidence on her part tending to prove that she did not sign it. See Commonwealth v. Coe, supra, at page 504; Commonwealth v. Tucker, 189 Mass. 457, 471. The judge having found the standard to be written by the defendant, had a right to decide, upon comparing it with the signature on the note, whether or not the defendant signed the note. Order dismissing report affirmed.