Wilmington Savings Bank v. Waste

Tyler, J. This action is assumpsit brought to recover the amount due upon a promissory note, purporting to have been signed by Clara I. Hall, Israel L. Hall and the defendant, and payable to the plaintiff; defense, that the note was not signed by the defendant, and that his name upon it was a forgery. I. The plaintiff called Martin A. Brown as a witness, who testified that he was familiar with the signature of the defendant, that he had seen him write, and that in his opinion the signature upon the note was the defendant’s. In cross examination the defendant showed the witness a paper which had the name “C. H. Waste” written upon it ten times, in connection with an offer to show later in the trial that certain of the signatures upon the paper were the defendant’s. The defendant was permitted to1 cross-examine the witness as to whether in his opinion any of the ten signatures were in the [336] defendant’s handwriting, and if so, which ones; whether any of them were not in the defendant’s handwriting, and how many handwritings there were upon the paper. The defendant showed the witness two other papers of the same character and used them' for the same purpose, and the three papers were admitted in evidence. In cross-examination it was competent for the defendant, for the purpose of testing the correctness of the witness’ judgment, to show him1 signatures of the defendant conceded or proved to be genuine, but this was the limit of comparison. Sanderson v. Osgood, 52 Vt. 309; Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853; Costello v. Crowell, 133 Mass. 352. The defendant examined the witness as though he were an' expert, when he was not. His testimony was directly upon the question whether or not the signature upon the note in suit was genuine. But if the witness had been an expert the rule required that a standard of comparison should be established before he could be examined by the use of signatures made for the purpose of the trial. Abbott’s Trial Ev. (2nd ed.) 488,489. It appears that the signature upon another note in evidence was conceded to be the defendant’s, but the exceptions do-not show that it was used in the cross-examination. The witness, was required to select from the three papers the genuine signatures of the defendant, and then the papers went to the jury. It was error both to permit this course of examination and to allow the papers to be submitted to the jury. II. The money for which the note was given was loaned to Israel E. Hall, the second signer upon the note, and the defendant claimed that his name was forged by Hall. As tending to establish this fact a witness, Collins, was called by the defendant and allowed to testify that he was a near neighbor of Hall and had done considerable business with him, had seen him write and knew where his desk was; that after Hall’s [337] arrest, which was a year and a half after the note was signed, he went to Hall’s house, looked over his desk and papers and there found a sheet of paper with the defendant’s name written several times upon it, and two other sheets with two other names written several times upon them, respectively, but that he could not tell in whose handwriting the names were. Another witness, who was with Collins, testified to the same facts. With no evidence tending to show that these names were in Hall’s handwriting, nor that they resembled the defendant’s signature, this evidence was placed before the jury for the apparent purpose of inviting them to believe that Hall had at some time practiced writing the defendant’s name. This evidence should have been excluded. • III. It was error to permit the defendant to testify that the plaintiff’s clerk said to the defendant, when he called to see the note, that it was in the attorney’s office “with .the other forged notes.” This evidence got before the jury the opinion of the clerk that this note was forged. IV. The testimony of the plaintiff’s treasurer that the bank officers made an examination of other notes, and that they had, and had expressed, suspicions that some of them, which purported to have been signed by Hall and others, were forged, was hearsay as to the other officers, and was irrelevant to, the issue in the case. The testimony of the treasurer that neither he nor any of the officers had any suspicion that the note in suit was forged did not cure the error. If the jury believed that th.e bank officers suspected that Hall had forged other paper, they would more readily believe, and upon incompetent testimony, that he forged the note in controversy. All the evidence considered was admitted under the plaintiff’s objection and exception. Judgment reversed and cause remanded.