Harris v. Tinder

SMITH, P. J. In the plaintiff’s petition it is alleged that defendant by his negotiable promissory not©' promised to pay one Annie L. Gentry twelve months' after the date thereof the sum therein named; that the' payee in said note before the maturity thereof for value endorsed the same to D. A. Mayer; that after-wards and before maturity the said Mayer, for value received, endorsed the same to plaintiff. The defendant denied the execution of said note by answer verified by affidavit. At the trial the court by the defendant’s fifth instruction told the jury that the burden was on the plaintiff to prove by a reasonable preponderance of the evidence that defendant signed the note sued on or authorized his name to be signed to it by someone else, and that defendant delivered the note to the payee’s agent as his note. It seems to us that this was a correct expression of the law and was properly given. There was no evidence tending to prove that the defendant signed the note or that he authorized anyone to sign it for him, but the plaintiff’s evidence showed that the defendant [566] delivered the note with his name signed thereto to the payee’s agent. And we can not see that it makes any difference whether his name was signed to the note with his own hand or signed by that of another if he delivered it as his note. He could adopt the signature as that of himself and then utter it. If his name had been affixed by a stamp or in typewriting by someone without his authority, and yet if he should choose to deliver it as his note, this would be an adoption and would be the same thing in legal effect as if he had affixed his signature with his own hand. If the evidence disclosed that he delivered the instrument to the payee as his note this was in effect a representation made by him that the signature thereto was his and that it was his obligation, no matter to whom or in what way his signature was attached; and such evidence would be within the allegation of the petition. It would be one of the ways to prove the execution and delivery of the note. In such case the replication was not required to plead ratification or estoppel to make such'evidence admissible. This case is distinguished from that of Kelchner v. Morris, 75 Mo. App. 588, and the case to which the latter refers, for there the forged note was not delivered as here by the apparent signer or maker thereof to the payee as his note, but by the forger himself. In that case there could be no ratification of the unauthorized act of the forger since the act of the forger was void and incapable of ratification. Evidence as to the delivery of the note' by defendant pro and con was, as we think, properly admitted under the issue made by the pleadings. The instruction complained of was not broader than the issue and imposed upon the plaintiff no unnecessary burden. The plaintiff by the introduction of his evidence tending to prove a delivery of the note to him by defendant in substitution for another note of like amount thereby made out a prima facie case. This evidence was by the [567] jury discredited and that of the defendant credited. And as a consequence the verdict was for the defendant which we think was justified by the evidence and the instructions. Accordingly, the judgment must be affirmed.