Tucker v. Hyatt

Howard, C. J. This was an action brought by the appellee against the appellant for damages for breach of promise of marriage. The trial resulted in a verdict for $6,000.00 in favor of appellee, upon which judgment was rendered. Numerous errors are assigned on this appeal, but counsel discuss only the overruling of the motion for a new trial. To the complaint of appellee, appellant pleaded a written release of the marriage contract, claiming that such release had been signed by her for a consideration of $800.00. The appellee, however, denied the execution of the release; and evidence went to the jury on both sides of the issue so formed. The appellant produced three witnesses, Albert L. Keysecker, his wife, Lugarda Keysecker, and Joseph Tillman, who each testified that they were acquainted with the handwriting of the appellee, and that the signature to the release was her genuine signature. On the cross-examination of these witnesses, the court permitted appellee’s counsel, over the objection of appellant, to place in the hands of the witnesses the appellee’s affidavit for a change of venue and her verified reply of non est factum, and have the witnesses compare appellee’s signatures to those papers with the signature of the release. It is claimed that this was error. In Thomas v. State, 103 Ind. 419, the defendant denied having written a disputed letter. On cross-examination, he was shown other letters and asked to say in whose handwriting they were. Objection was made to such cross-examination on the ground that the letters so offered for comparison “were not papers in the case, and were not referred to in the examination in chief.” The letters offered for comparison were not admitted to be genuine, but there was evi [637] dence to show that they also had been written by the defendant. It was held that the cross-examination was proper. So in 1 Wharton Ev. (3d Ed.), section 710, it is said: “There is little question that a witness may on cross-examination be tested by putting to him other writings, not admitted in evidence in the case, and asking him whether such writings are in the same hand with that in litigation.” The rule in England, as fixed by statute, 17 and 18 Vic., ch. 125, section 27, is that: “Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute.” We think there can be little doubt that in this State, after some fluctuation in our decisions, the rule is, that any writings admitted to be genuine, or writings which are properly papers in the case for any purpose, may be used, by way of comparison, to prove, or disprove, the genuineness of the writing in dispute; White, etc., Co. v. Gordon, 124 Ind. 495; McDonald v. McDonald, 142 Ind. 55, and cases cited. The writings used for comparison in the case at bar, being the affidavit of appellee for a change of venue, made and signed by her long before the release in dispute was brought into the record by appellant, and her verified reply, were both “papers in the case;” papers, too, which the appellant on the trial admitted were “before the jury for all purposes,” and, under the rule above stated, it was not error to allow these papers to be used by the witnesses, on cross-examination, to compare the signatures of appellee thereto with the signature to the release. [638] Complaint is next made that two of appellee’s witnesses were allowed to testify as to the genuineness of the signature to the release, from having seen appellee write; although their knowledge of her handwriting had been acquired only since the controversy began. It may be noted that appellant opened the way for this line of evidence, by calling witnesses who were shown to have only a like acquaintance with appellee’s handwriting. Moreover, it does not appear that appellee’s handwriting was executed on any of the occasions referred to for the purpose of manufacturing evidence for the trial. The witnesses simply gave the facts as to the source of their acquaintance with the handwriting. The weight which might be given the evidence was a question for the jury. The mere circumstance that a witness has become acquainted with handwriting since the opening of a trial, is not of itself enough to make his evidence as to the genuineness of the handwriting incompetent. We do not think any abuse of discretion is shown in the admission of the testimony complained of. Fault is also found that counsel for appellee took the verified reply and the release and submitted them to the jury for comparison of the signatures. These papers were a part of the record, and were before the court and jury for all proper purposes. It was not necessary to introduce them in evidence; they were already in for that purpose, and might therefore be commented on by counsel and inspected by the jury. Colter v. Calloway, 68 Ind. 219; Boots v. Canine, 94 Ind. 408; Bell v. Pavey, 7 Ind. App. 19. Counsel for appellant finally contend that the court erred in admitting in evidence a transcript of the record and decree of divorce of the appellee from her former husband, as entered in the circuit court of the [639] county of Otsego, in the State of Michigan. Even if it were error for any reason, to admit this evidence, the error was harmless; for appellee’s competency to enter into the marriage contract with appellant was not denied. She did not need to allege or prove that she was a woman, that she was of marriageable age, that she was unmarried, or that she was otherwise competent to enter into a contract of marriage. Her capacity to enter into such contract will be presumed in the absence of averment and proof to the contrary. In Jones v. Layman, 123 Ind. 569, which, like this, was an action on breach of marriage contract, it was contended that the complaint was bad because it was not alleged that the parties were of marriageable age. The court said : “There is nothing in this objection. The presumption is, as to all contracts, that the parties were competent to contract, until the contrary is made to appear.” By section 359, R. S. 1894 (section 356, R. S. 1881), it is provided that: “All defenses, except the mere denial of the facts alleged by the plaintiff, shall be pleaded specially.” Appellee was not required to allege her capacity to enter into the contract: it was for appellant to plead specially, in bar, her want of capacity. “In an action of this kind,” said Lotz, J., in Walker v. Johnson, 6 Ind. App. 600, also an action for breach of promise of marriage, “there are many things that a defendant may plead in bar of a recovery, and there are many things that he may give in mitigation of the amount of recovery. The rule is, that if he relies on a matter in bar he must plead it specially.” Appellant, therefore, not having filed an answer averring appellee’s want of competency to enter into the marriage relation, she was under no obligation to prove such competency. [640] But even if such evidence were necessary on the part of appellee, we are of opinion that the certified copy of the decree of the Otsego County, Michigan, Circuit Court, a court of general jurisdiction, and having a Judge, a clerk, and a seal, as such copy is set out in the record, was sufficient for the purpose for which it was offered. The proceedings and decree are authenticated by the clerk and judge of that court as required by the act of Congress, in such case made and provided. Section 458, R.S. 1894 (section 454, R.S, 1881). See also section 479, R. S. 1894 (section 472 R. S. 1881); Bailey v. Martin, 119 Ind. 103; Teter v. Teter, 88 Ind. 494; Hamilton v. Shoaff, 99 Ind. 63. No available error appearing, the judgment is affirmed. Filed November 21, 1895.