Durnell v. Sowden

Boreman, J.: The respondent, Eliza Durnell, brought her action against the appellant, Joseph Sowden, upon a certain promissory note alleged to have been indorsed to her by him after maturity. Verdict and judgment were rendered against Sowden, and thereupon he appealed the case to this court. 1. It is alleged that the court erred in refusing to exclude all evidence under the complaint; that the .complaint did not state facts sufficient to constitute a cause of action, for that there was delay and negligence in presenting the note for payment, and no excuse therefor was stated. In regard to the alleged delay, the appellant asked the court, at the close of the testimony, to charge the jury that if they believed the delay in presenting the note for payment to have been unreasonable, and that, under all the circumstances, the respondent was negligent, etc., they should find against her; but the court refused to so charge. We do not see that it- was necessary for the complaint to state any excuse for the delay. It stated the facts as to the time of presentation and the date of the indorsement. From these facts the court was to judge whether there had been unreasonable delay or not. It would not have been proper for ■ the court to have instructed the jury upon the question of the reasonableness or unreasonableness of the delay. That was a question for the court and not for the jury; and the court, in passing upon the sufficiency of the complaint, passed upon the question. When the facts are ascertained, the question is. one of law for the court. The appellant cites authorities [222] which support this view: Daniel. Neg. Inst., sec. 612; Sohool-Dis. v. Com., 84 Pa. St., 471; Poorman v. Mills, 89 Cal., 345; Himmelman v. Hotaling, 40 Cal., 111; Wallace v. Agry, 4 Mason, 336; Pars. Notes & B., 340; Wyman v. Adams, 12 Cush., 210. In the complaint the facts are all stated — all ascertained. The delay in presenting the note to the maker for payment was not unreasonable. Van Alstyne v. Van Hoesen, 3 Wend., 75. A note indorsed, when overdue, is considered equivalent to a note or bill on demand: 1 Pars. Notes &B., 519, 381. Our statute declares that mere delay in presenting a bill of exchange or promissory note, payable, with interest, at sight or on demand, does not exonerate any party thereto: Laws 1882, p. 62, sec. 87; Id., p. 65, sec. 109. 2. It is assigned for error that the court admitted in evidence certain letters of the appellant, and permitted witnesses to testify from a comparison of the same with the signature of the appellant in dispute. The respondent, as witness in her own behalf, testified that she saw the appellant indorse his name on the note in question. Thereupon, as additional testimony in regard to the genuineness of the signature of the appellant, the appellant himself was called to the witness stand, and testified that these letters were in his own handwriting. They were then introduced in evidence, over the objection of the appellant. The former English rule was that evidence of the genuineness of a signature .could not be proven by witnesses testifying as to their opinion arising from comparison of the handwriting with other handwritings shown or admitted to be genuine. This was not settled in England, however, as the common law doctrine, until 1827, and by a divided court, in the case of Mudd v. Suckermore, 2 Nev. & P., 18. Thereafter parliament adopted the views of the minority of the court, and enacted a statute allowing such evidence to be admitted. In this country the courts of the different states have taken different views of the question, some admitting and others rejecting such evidence, before it was settled in [223] England. The supreme court of the United States leaned towards the view as afterwards settled in England in Mudd v. Suckermore, but made no direct decision upon the question. The first case in that court to which our attention has been called is that of Strother v. Lucas, 6 Pet., 767, 768, but it was a case where the handwriting (a signature to' a deed) was sought to be proven by comparison with the handwriting or entries made in a certain register of marriages and interments alleged to have been made by the witness, of which, however, there was no direct evidence, and “there were living witnesses examined as to the handwriting; and, besides, the deed was received and read in evidence, and the plaintiff had the full benefit of it.” The general rule, as recognized, was mere dictum, and not a decision upon the point, and the case was not at all like the present one. In the next case, that of Rogers v. Ritter, 12 Wall., 320, the court said that it was “not necessary, for the purposes of this case, to discuss the subject in all its bearings, nor to depart from the rule laid down by the court in Strother v. Lucas, that the evidence by comparison of hands is not admissible when the witness has had no previous knowledge of the handwriting, but is called upon to testify merely from a comparison of hands.” The court then proceeded to approve the admission of the evidence where the witness had never seen the party write, nor had they had any correspondence with him, but their knowledge had been obtained entirely from having seen his name signed to papers, and no question had been raised as to the genuineness of his signature to them. The facts in the present case are very similar to those in that case. Here two of the witnesses obtained their knowledge of the appellant’s handwriting by having seen the letters referred to before being called as witnesses, but not before the commencement of the action. That is the only difference, except that in one respect the ease at bar is the stronger. In the case at bar the party (appellant), whose signature to the note is in dispute, testifies that the exhibits examined by the wit’ nesses were written by him. [224] The supreme court of the United States, in the case of Rogers v. Ritter, said: “The witesses in this case were conversant with the signature of Sanchez, and swore to their belief, not by comparing a disputed with an acknowledged signature, but from'jthe knowledge they had previously acquired on the subject. The text writers all agree that a witness is qualified to testify to the genuineness of a controverted signature if he has the proper knowledge of the party’s handwriting. The difficulty has been in determining what is proper knowledge, and how it shall be acquired. It is settled everywhere that, if a person has seen another write his name but once, he can testify, and that he is equally competant if he has personally communicated with him by letter, although he has never seen him write at all. But is the witness incompetent unless he has obtained his knowledge in one or the other of these modes ? Clearly not, for in the varied affairs of life there are many modes in which one person can become acquainted with the handwriting of another besides having seen him write or correspond with him. There is no good reason for excluding any of these modes of getting information; and if the court, on the preliminary examination of the witness, can see that he has that degree of knowledge of the party’s handwriting which will enable him to judge of its genuineness, he should be permitted to give to the jury his opinion of the subject.” This would appear to have been the situation in the case at bar. The .court evidently saw that all three of the witnesses who testified to the signature of the appellant, from examination of the letters shown in evidence, had that degree of knowledge that would enable them to judge of the genuineness of the appellant’s signature. Opinion evidence is generally weak; yet that fact does not make it incompetent. And this case of Rogers v. Ritter also lays down the doctrine that it was proper for the witnesses to give their opinion to the jury. This is in accord with the general doctrine that it is proper for such evidence to go to the .jury, rather than that the jury should compare the writings themselves. The only other case decided by the supreme court of the [225] United States, and to which our attention bas been called, is that of Moore v. U. 8., 91 U. S., 270. It was a case wherein the court of claims, sitting as a jury, had compared the disputed signature with a genuine signature to a paper already in evidence for another purpose. The court, referring to the general rule spoken of as the common-law rule, said that that case was an exception to the general rule, and said the comparison was proper. It decided nothing further on the subject. It would seem from all these cases that the interpretation placed upon the rule by the supreme court of the United States confines it to cases where the witness has no knowledge on the subject until called to the witness stand, and then the disputed signature and also the genuine signatures are for the first time presented to him for his examination and opinion. That narrows the rule down to very limited boundaries, and in our view does not include the case at bar; but it is an exception thereto, similar to the case of Rogers v. Ritter, supra, even if the rule be recognized to exist at all. In very many of the states that rule has never been recognized. At the time of the first settlement of the older states, or at the time of our national independence, the rule had not been settled in England, and the rule as subsequently settled in England was not, therefore, accepted as part of the common law by those states. The reasons upon which the rule of exclusion was recognized in England do not exist in the case at bar, and the rule is not approved as a wise one by the text writers generally. All of these things together lead us to the conclusion that the lower court did not err in admitting the evidence of the experts as to the genuineness of the appellant’s signature upon the note. We see no error in the court below. The judgment and order of that court are affirmed. ZaNE, C. J., and HeNdeksoN, J., concurred.