First National Bank v. Bressler

Lacey, J. The appellee sued appellant in an action of trover, to recover from it the value of four promissory notes given by one Martin Teachout to Abram Ulmer, deceased, dated August 29, 1885; one for $100, payable January 1, 1887; one for §250, due January 1, 1889; one for §300, due January 1,1890; and one for §200, due January 1, 1892, each drawing interest at the rate of eight per cent per annum payable annually. There was a plea of not guilty, and trial, verdict and judgment for appellee as administrator with the will annexed of the estate of Abram Ulmer, deceased, for the sum of §985.39 less §22 remitted, and for costs of suit. The appellant came into possession of the notes through Iliram O. Ulmer, a son of Abram Ulmer, deceased, who had the possession of the notes acquired from his father, and who hypothecated them to it to secure a certain note of his own which he had given to it. The amount due the bank at the time the suit was commenced was about §1,600, to which the notes were pledged as collateral security. The indorsement on the notes by Abram was in the handwriting of his son, Hiram O. Ulmer, and the main question of fact in issue in the case was whether he had authority from his father as a general or special agent to sign his name as an indorser, and to pledge the notes as security for his, Hiram’s, debts, and also whether Hiram was the owner of the notes by gift from his father. There was evidence introduced by appellant to show that at various times Hiram C. had signed contracts of sale of real estate for his father and that the father had stated to various persons that his son was his agent and did all his business, and it was further in evidence that his father sent Teachout, the maker of the note, to Hiram to pay the interest, and that he stated that anything the latter did was “ all right.” The appellant claims that it is in proof that at one time Hiram, by Abram’s consent, pledged the notes as collateral security for a loan of Hiram. But the evidence of Slick, upon which this assumption rests, rather proves, or at least tends strongly to prove, that Slick’s debt was one contracted with Abram himself for the sale of a town lot to him, and that the debt was not Hiram’s. It is insisted by appellant that there was a presumption in favor of the right to indorse the notes as was done by Hiram, arising from the fact, that if such right did not exist a crime would have been committed, and presumptions are always in favor of innocence. In a case like this we can not think such is the law. If the note was indorsed in Hiram’s handwriting the burden of proof would be cast on the party claiming this right to show his authority. There does not appear to be any sufficient evidence tending to show that Hiram had the property in the notes, or that he had any general agency to indorse or negotiate the notes for his own benefit as he did in this case. Hence his act in doing so would raise a strong presumption of fraud on his part, and would justify the jury in finding the indorsement fraudulent. The general agency claimed by appellant on the' part of Hiram to indorse the notes for his own benefit outside of any benefit of the father, rests on no, or very slight, evidence, and the jury were justified at least in finding there was none. The scope of the evidence seemed to be that Abram was quite old and feeble and not very well qualified to transact his own business, and that he had given the notes into Hiram’s hands to keep for him and collect the interest for him, and that Hiram transacted his business generally. But it was no part of the old man’s business to go security for his son’s debts or allow his son without special authority to put the notes in other hands as cóllateral for Hiram’s debts. This was not within the scope of his agency, and any one dealing for the notes in that -way must show a general agency to indorse for such purpose. As, for instance, one partner of a firm may sell and dispose .of the partnership property in the transaction of the partnership business but can not do so to pay the individual debts or to secure individual debts of one member of the firm without special authority from the other partners; and any one dealing for such property would not be protected without showing such agency to specially exist, or ratification afterward. The appellant in his reply brief says: “Appellant nowhere argued that we have shown an absolute gift of all his property to his son Hiram. We contended that it meant, what counsel now concedes that it meant, that everything and all of his affairs were left to be conducted by his general agent, Hiram 0. Ulmer.” At most it was contended there was evidence enough to that effect on which to base an instruction. The evidence was such that it was not the province of the court to instruct the jury on any case of supposed presumption, but to leave it to the jury on the whole evidence whether any agency existed on the part of Hiram to indorse or pledge the notes as collateral security for Hiram’s debts, and that the burden of proof was on the appellant to show such agency after it was shown that Abram himself, in his proper person, did not indorse or hypothecate the notes. We are satisfied that there was abundant evidence upon which the verdict can be sustained. It is insisted by appellant’s counsel that the court erred in admitting the evidence of Elizabeth Bressler, the wife of appellee and daughter and legatee of Abram Ulmer, deceased, and also in refusing to allow John L. Deets to testify on behalf of appellant. The witness Elizabeth Bressler, testified that the writing on the back of the notes of the indorsement was not .n the handwriting of her father, Abram Ulmer, deceased, and this was the extent of her evidence. The point of her competency or incompetency as a witness is argued by counsel on either side, but we are of the opinion that under the state of the evidence it was immaterial whether she was a competent witness or not, as the fact that Hiram signed his father’s name to the indorsement was not disputed. The appellee itself proved by Teachout, who was recalled as a witness for that purpose, that Abram’s signature to the indorsement was in the handwriting of Hiram. It also proved by Brewer, its clerk, that Hiram deposited the notes as collateral security for a debt of his own. There was no effort to show that the name of Abram indorsed on the notes was in his proper handwriting, nor any contention at the trial that it was. So we may regard that point as undisputedly established outside the evidence of Mrs. Bressler. We will now consider the objection made that the evidence of John L. Deets offered by appellant, was wrongfully rejected. He testified on his voir dire that he was the person who purchased the land sold by Abram Ulmer to Teach-out, from the latter, and paid what he considered interest on the notes spoken of, and the subject of this suit, and had assumed to pay the notes. That he had paid interest on the notes since December, 1887, to the amount of $112. The court then ruled that Deets was incompetent as a witness. The appellant offered to show by this witness, that he asked Abram Ulmer whether it would be agreeable to him for the witness to assume the payment of the notes, and Ulmer told him to go to Hiram and any arrangement he would make would be satisfactory. The court refused the offer on the ground that Deets was interested in the event of the suit. A similar offer was made to show Abram directed him to pay the interest to Hiram, which was refused by the court; that Hiram owned the notes and he had given them to Hiram and that he looked to Hiram for support. This was likewise refused for the same reason. We see no error in the court refusing this testimony. The witness was directly interested in the event of the suit against appellee. The appellee was suing appellant to recover the value of the notes from it both in interest and principal. If he recovered, the appellant would be subrogated to the right of appellee to the notes and interest. It would acquire the same right to the notes as appellee had, because in order to recover the entire amount the appellee must show that the estate had full right to the notes and interest without abatement. Hence, if this were so, appellant, after recovery from it, would have the same right. The record of the judgment would be evidence of such right and one step in the chain of evidence of the bank in case of a suit by it to recover the full amount of the notes and interest from Deets. Deets claimed to have paid $112 interest, a portion of it after the death of Ulmer. If the payment be justified alone on the ground that Hiram was Ulmer’s agent to collect such interest, the agency ceased at the death of U1 mer and the payment would not be valid. Hence as to that much of the claimed payment of interest it would not be proper to pf ove it because it was incompetent to establish such payment as against the administrator. If the appellant could prove that the notes had been given to Hiram by his father, and Hiram was the owner at the time he pledged them to the bank and at the time when the interest was paid, then, of course, all of Deets’ payments would be allowed him as against appellant whether paid before or after the pledge, because, after allowing such payment there would be enough due on the notes to fully satisfy the bank’s principal debt against Hiram. If the appellee should be cast in his suit Deets would be cleared from any liability over from any suit of appellant and the judgment would be in his favor to defeat any such claim and against him if in appellee’s favor. It was his direct interest both to prove Hiram’s agency and also his ownership of the notes, in order to defeat appellee and prevent any recovery over by appellant, on any portion of the payments made to Hiram by him. Therefore as appellee prosecuted as the administrator of a deceased person and the proposed witness being called in his own interest as well as that of appellant, the court, under the statute, properly rejected his evidence. Objection is made by appellant to the giving of certain of appellee’s instructions and error is claimed. We do not deem it necessary to go over and notice "n detail these objections as it would extend this opinion to an unreasonable length. Suffice it to say we have carefully examined those instructions and find them substantially fair to appellant and correct in law; nor do we see any substantial objection to the modification of appellant’s instructions nine and ten, and besides, all of its instructions are not contained in the abstract, which should have been done if it were desired to have such objections noticed. It appears to ns that the evidence fully supports the verdict and that there is no error in the record. The judgment of the court below is therefore affirmed. Judgment affirmed.