Edmonston v. Henry

Smith, P. J. — Suit on a promissory note commenced before a justice of the peace. The execution of the note was denied on oath. On the trial of the cause in the circuit court where it had been removed by appeal the plaintiff offered to read in evidence the note notwithstanding the defendant’s denial under oath, on the ground that the language of the denial, which was that defendant “ did not sign the note sued on,” was insufficient to put in issue the execution of the note. It is true the denial does not use the statutory word “execution ” (sec. 6217), but does use the word “sign” which we think in the connection in which it was employed was a term of equivalent signification. Neither lawyer nor layman could fail to understand that, when defendant made oath that he did not sign the note, he meant that he did not execute it. The plaintiff offered to show by a witness that cer tain checks which were produced had been signed by defendant, and that he had admitted the signature thereto to be his. It was proposed to introduce these checks as standards of comparison which the court held inadmissible for that purpose. The ruling was correct. The rule is that papers not a part of the case and not relevant as evidence to the other issues are excluded on the ground that to admit such documents would lead to an indefinite number of collateral issues and would operate as a surprise upon the other party who would not know what documents were to be produced, and, hence, could not be prepared to meet them. Rose v. Bank, 91 Mo. 399. The checks here were not a part of the case and not relevant to the other issues, and were, therefore, inadmissible in evidence as standard of comparison under the rule just stated. The witness Armstrong did sufficiently qualify as an expert, his avocation of merchant and dealer in commercial paper qualifying him in that regard to some extent at least. His testimony shows that he considered himself an expert. We cannot see that even if there [349] was any question as to his competency as an expert that his testimony seriously harmed the plaintiff. As far as we can discover there was no evidence of fraud introduced. The evidence in respect to the consideration of a contract held in evidence related to a collateral matter, and was not relevant to the issue, and was properly excluded. The alleged misconduct of the defendant’s counsel is not made a ground of complaint in the motion for new trial, and, hence, for that reason, if for no other, we cannot consider that matter here. There is no force in the objection urged against defendant’s instruction. While it contained the word “preponderance” which has been the subject of criticism by some of the courts when used in an instruction without definition, its employment is insufficient, where there are no other errors, to warrant the reversal of the judgment. The burden of proof in this case was by the denial of the note on oath by defendant cast upon the plaintiff where it remained throughout the trial. Feurt v. Ambrose, 34 Mo. App. 360. This evidence was contradictory, and the instruction telling the jury that the plaintiff must by a preponderance of the testimony prove that the defendant signed the note was not improper. It is perhaps subject to some verbal criticism, but that is all. Perceiving no errors in the record affecting the substantial rights of the plaintiff, the judgment will be affirmed. All concur.