Matlock v. Wheeler

Opinion by Mr. Justice Wolverton. The plaintiff, testifying in his own behalf, gave evidence in chief tending to show that a few days after the execution of the note the defendant Wheeler came to his place of business, and stated that there was a mistake in the note; that it. was given for too much money, and to correct it he wanted a credit of one hundred and ninety-five dollars ■ indorsed thereon, and to have the note draw interest from date, and continuing, said: “He showed me some figures by which I saw he was right. I told Mr. Wheeler I would give the credit on the note, and make the change as soon as I could see the parties, if they were willing to do it, and I did so.” Further testimony was then given by him tending to show that he subsequently saw all the makers of the note, obtained their consent, and made the change accordingly, by indorsing one hundred and ninety-five' dollars thereon, and erasing the word “maturity.” Without having testified in chief touching the consideration of the note, he was asked and permitted to answer, over objection, the following question, namely, “What was the consideration of the one thousand one hundred and seventy-dollar note on which you recognized the overcharge of one — 67 — hundred and ninety-five dollars, leaving the true principal nine hundred and seventy-five dollars?” Answer — “There were three notes given to Goodale and I- for four thousand five hundred dollars. These notes were partly paid. * * * gome time before that, some eight months, probably, Mr. Goodale claimed to have collected something between eight hundred dollars and two thousand dollars on the notes, leaving whatever balance there would be. The balance was figured up and put into four notes; three notes for three hundred and three dollars and this note for one thousand one hundred and seventy dollars. * * * I had to commence a suit to collect my half of the money he (Goodale) had collected. In this suit there were some costs, and the note of one thousand one hundred and seventy dollars and the three three-hundred dollar notes were for the same thing, and were to balance and adjust the debt between us, with these costs. That was the consideration, and was a part of the consideration of the three notes with accruing costs.” After the plaintiff had rested, A. Wheeler, one of the defendants, was called as a witness, who gave evidence tending to show that in October, eighteen hundred and ninety-two, there existed two notes executed by Wheeler, Grawford, and Fuller to Matlock and Good-ale, that Crawford had paid one half of the notes, and Wheeler was to pay the remaining half. One of these notes, being for nine hundred and eight dollars and seventy-five cents, was due; and in taking it up three notes were given for three hundred and three dollars each. The other note was for one thousand five — 68 — hundred dollars, one half of which had been paid, and the balance, with three years’ interest thereon, would become due in September, eighteen hundred and ninety-three. This note was to be renewed with J. C. Goodale as one of the makers, and in pursuance of the arrangement the one thousand one hundred and seventy-dollar note was executed to plaintiff, which was made to draw interest from maturity, because the interest was included in the principal sum. The witness discovered an error in his computation, and explained that “The principal was one thousand one hundred and seventy dollars, when it should have been nine hundred and seventy-five dollars, which was the amount due on the note for which it was given.” He was then asked the following question: “In the settlement that led up to the giving of this note was there anything included for costs of some former litigation?” To which he replied: “Not anything. I paid them; I gave my check on the Lane County Bank for them.” There appears to have been no objection made at this time to the question or answer. But the bill of exceptions, after reciting some intervening matter, shows that the witness “after having been allowed to testify as above stated, also testified as follows.” The same question then appears to have been propounded, to which the same answer is given as above, and thereupon plaintiff moved that the answer be taken from the jury, which was allowed. The witness was then asked to “ state to the jury what if any costs were paid?” He answered without objection: “The costs were paid by my check on the Lane County Bank.” — 69 — The check was then offered in evidence, but upon objection it was excluded by the court. Subsequently E. J. Crawford was called as a witness for defendants, and was asked “what was the consideration of the one thousand one hundred and seventy-dollar note mentioned in plaintiff’s third cause of action?” which question was objected to by • plaintiff, and the court sustained the objection. The purpose of the question, as disclosed by the record, was to corroborate Wheeler in the main as touching his statements concerning the consideration of the note. Counsel contends that the court erred in not permitting this testimony to go to the jury, because, first, the testimony of Wheeler and the check offered by him were pertinent to rebut the statement of the plaintiff touching the costs of the action as entering into and forming part of the consideration of the note sued on; and, second, the testimony of both Wheeler and Crawford was relevant as tending to establish the defendants’ case. Wheeler denied that he ever consented to the change in the note, and in support of his statement related the circumstance, from his standpoint, that a mistake was simply made to the extent of one hundred and ninety-five dollars against himself in ascertaining the amount for which the note should have been written, and that the indorsement alone would leave the amount as it was originally intended by the parties; that the interest having been calculated in advance to September ninth, eighteen hundred and ninety-three, the date upon which it was made to fall due, was added to the principal, making nine hundred and seventy-five dollars, instead of one thousand — 70 — one hundred and seventy dollars. He said in effect that a change in striking out the word “maturity” would increase the liability by the amount of the interest on the true principal intended by the parties, to wit, nine hundred and seventy-five dollars from the date of the execution of the note to the date of its maturity, and therefore, for this reason, among others, he knew he did not consent to the change. 1. We will consider first whether this testimony was relevant. The issue was whether the note had been changed by striking out the word “maturity” with the consent of the makers, or, if without their consent, whether it was afterwards ratified by them. The rule is settled “that the evidence offered must correspond with the allegations, and be relevant to acts put in controversy by the pleadings”: Bradner on Evidence, 8. But where the evidence is at all material, and is relevant, it is error to exclude it: Colglazier v. Colglazier, 124 Ind. 196 (24 N. E. 95). It is said in Olmsted v. Hoyt, 11 Conn. 380, that “Evidence ought never to be adjudged irrelevant, which, according to ordinary experience, and the common observation of the motives and conduct of men, may fairly be supposed to influence and persuade candid and intelligent minds.” This doctrine is approved by Copp v. Hardy, 32 Mo. App. 588. Again, in Louisville Railroad Company v. Hart, 2 Ind. App. 130, (28 N. E. 218,) it is said: “A witness may be allowed to testify to the existence of any collateral fact that may tend to enable him to — 71 — remember" tbe principal fact, or strengthen his conviction in its truth.” Hunter v. Harris, 131 Ill. 482, (22 N. E. 626,) is a case wherein the issue was as to the execution of a promissory note. The proof as to the genuineness of the signatures being about equally balanced, it was held that evidence tending to show a reason for the execution of the note, and a reasonable probability or improbability that the defendant made and delivered the same, is not only competent, but highly important for the consideration of the jury. With the case at bar there is a direct conflict between the witnesses touching the consent to and ratification by the makers of the note to the change. Now, it would seem that the fact, if it is a fact, that the nine hundred and seventy-five dollars included the interest calculated in advance to September ninth, eighteen hundred and ninty-three, the date upon which the note would fall due, would be relevant as tending to show that the makers of the note would less readily consent to the change, as it would increase their obligation. It is, at least, a circumstance surrounding the transaction, which ought to go to the jury for what it is worth. The reason for the doing or not doing of a thing, if patent, is usually indicative of the ultimate act of a rational being. So that a reason which is calculated to affect the actions of individuals is pertinent in determining whether or not they have acted at all. We think the testimony of both Wheeler and Matlock touching the consideration which formed the basis of - the note in question was relevant to establish defendants’ case, and the court was in error — 72 — in not permitting the witness Crawford to testify thereto in corroboration of Wheeler. Now, as touching the check which was offered and rejected. The defendants were not entitled to the testimony of plaintiff relating to the consideration of the note* while on the stand as a witness in his own behalf, as he had made no allusion to it in his examination in chief. The orderly way for defendants to have proceeded would have been for them to have offered their evidence upon this subject, then, if in rebuttal the plaintiff had testified that the costs constituted a part of such consideration, the defendants might in surrebuttal have testified as to the payment of these costs, and the check would then have become competent in corroboration. 2. It is next contended that the court erred in giving to the jury instruction number eight which is as follows: “(8), Or if you find from the evidence that at any time prior to the trial of this action the attention of the defendants, or any of them, was especially called to 'the alteration in the note, and they were told what the plaintiff had done in the matter of said alteration, and they did not object thereto, or stated that it was all right, or words to that effect, such words would amount to a ratification of the act of the plaintiff, and such defendant cannot now be heard to dispute the note as altered, and your verdict should be for the plaintiff.” The objection made to this instruction is that it is susceptible of being construed into a declaration by the court that if the attention of any of the defendants, — 73 — whether one or more, less than all, had been called to the alteration, and he or they had not objected thereto, that those not so notified would be held to have ratified the change as well. Standing alone the instruction is possibly susceptible of the construction suggested, but it must be read in connection with other instructions pertaining to consent and ratification. Numbers seven and eleven are the most pertinent and we quote such portions as are relevant: “(7). If you find from the evidence that at the time the alteration in the note was made the defendants, or any of them, was notified of the purpose of the plaintiff to make the alteration, * * * and they agreed to the change, or any of them, the defendants who consented to such change,” are bound, etc. And “(11). If you find from all the evidence that one or more of the defendants assented to the change, or ratified the act of the plaintiff in making the same, then the plaintiff can recover the whole of the amount due upon the note from such defendant, or defendants, and if you find from the evidence that any of the defendants did not assent to the change or ratify the same, then you cannot find against such defendants.” When read in pari materia with these, we think instruction number eight is not subject to the objection suggested. 3. It is further claimed that the instruction does not correctly state the law as to ratification, that a mere failure to disavow the acts of an unauthorized agent or a volunteer, when brought to the knoAvledge of the principal, does not amount to ratification; but — 74 — the instruction contemplates a case where the attention of the principal has been especially called to the change. In such a case we think he ought to disavow at once, or at least within a reasonable time, or he will be held to have ratified the transaction: Ward v. Williams, 26 Ill. 447 (79 Am. Dec. 385, and note found at pages 387 to 389). There was no error in giving the instruction, but for error of the court in rejecting the evidence of Crawford, the judgment will be reversed, and the cause remanded for a new trial. Reversed. [40 Pac. 5.] On Motion to Dismiss Appeal. Per Curiam. 4. The respondent moves to dismiss this appeal because the surety on the undertaking, after exceptions to his sufficiency had been filed, was not produced for justification as required by law. Before the time fixed for hearing the motion to dismiss, the appellants served and filed in this court a motion for leave to give a new and sufficient undertaking, whieh was brought on for hearing with the motion 'to dismiss. That the appeal was taken in good faith and the omission of the appellants to produce the surety for justification was the result of inadvertence and mistake on the part of their counsel is not questioned, but respondent contends that the failure to do so of itself operated as an abandonment of the appeal, and it is therefore within the power of this court under subdivision 4 of section 537, Hill’s Code, which provides for exceptions to and justification of sureties on ap — 75 — peal, to allow a new undertaking to be filed at this time. That subdivision provides that “when a party in good faith gives due notice of appeal, and thereafter omits, through mistake, to do any other act % * * provided in this section necessary to perfect the appeal (which of course includes the failure to have the sureties justify) * * * the court or judge thereof, or the appellate court, may permit an amendment or performance of such act on such terms as may he just,” and, in our opinion, clearly authorizes this court to permit a new undertaking to be filed when the original is rendered ineffectual by the failure of the sureties to justify after exception, where there has been no culpable fault on the part of the appellant. It was to prevent the failure of an appeal which had been taken and is being prosecuted in good faith that the statute was enacted, and to this end it should receive a liberal construction. The courts are always reluctant to permit an appeal to fail when it can be avoided without violating some positive provision of law or well settled rule of practice. The failure of an appellant to produce his sureties for justification may render the undertaking of no effect, but it does not necessarily avoid the appeal, or show such negligence as ought to be visited with the consequences of a dismissal and denial of the right to be heard in this court when he shows a reasonable excuse for his failure, and is willing to file' a new and sufficient undertaking. The motion to dismiss will therefore be overruled, and the undertaking submitted may be filed. Motion Overruled.