Benton County Savings Bank v. Strand

Granger, J. [608] I. Axel Mehlberg is the present executor of the estate, and is substituted as defendant in lieu of Thomas T. Strand, now deceased. Mehlberg is the witness to the signature of Sophia Johnson on the back of the note. The executor denies liability on the note, on a claim that when Mrs. Johnson indorsed the note the words, “Demand, notice, and protest waived,” were not on the note. We have the original note for inspection, and the words, “Pay to the order of E. E. ITartung,” are written in ink with a pen. Just below .these words, in red ink, as made by a stamp, are the words, “Demand, notice, and protest waived,” followed by the signatures. At the trial, Mehlberg was the witness for plaintiff, and testified that he was a son-in-law of Mrs. Johnson, knew her in her lifetime, and was present when the indorsement was made. He also testified that when the indorsement was made he did not see the words, “Demand, notice, and protest waivedand later in his testimony he said that, when the signature of Mrs. Johnson was placed on the note, only the words written in ink were above the signature. This means that the words, “Demand, notice, and protest waived,” were not there. The plaintiff offered the note in evidence, which the court, on objection by defendant refused, and the ruling is assigned as error. To a proper consideration of the question, it should be borne in mind that the signature of Mrs. Johnson on the note is not questioned. It conclusively [609] appears. The issue of fact iu the case is, was the stamp impression of the words, “Demand, notice, and protest waived,” placed on the note after the signature was made ? It is not easy to give the true state of Mehlberg’s testimony as it appears in the record. It is not too much to say that his conclusion that the words were not there when the signature was made is reached under circumstances that make the conclusion doubtful. There is in his testimony, taken as a whole, an element of uncertainty. As we have said, the note is before us for inspection, and it is not to be said that the note, as evidence, would not aid to a conclusion of the fact at issue. The manner in which the writing in ink first appears, then the stamp impression followed by the signature, showing the spaces with the indorsements as they now are, and as they would be with the words in dispute omitted, would certainly aid in determining the question of fact. It is to be borne in mind that to admit the note in evidence is not to concede a liability thereon, but to merely make it evidence, so that the manner and appearance of the indorsement may be eonsiderd with other evidence to know whether it has been changed or not. In case of a disputed signature, when the issue is made, the signature in question is proper in evidence on the question of its genuineness. We do not see why the same rule . does not obtain here, where the genuineness of an indorsement is involved. By the ruling the issue of fact was taken from the jury; the court saying, in effect, that the indorsement itself could not be considered to discredit the testimony of Mehlberg, if, as evidence, it would have that effect. And we may properly say that, with the note in evidence, we think there would have been a question for the jury. That Mehlberg was plaintiff’s witness makes no difference. Plaintiff was not bound by his statements, if shown untrue by other evidence. [609] II. In view of a new trial, it is probably well that we should settle a dispute as to the competency of E. E. Hartung as a witness for plaintiff. It will be remembered that he is the indorsee in the indorsement in question, so that it was a [610] personal transaction between him and Mrs. Johnson. He was present when the indorsement was made, and was a witness for plaintiff, and testified to the time when he first saw the words, “Demand, notice, and protest waived,” on the back of the note. He testified to the fact in different ways, as that he saw the words there before the name of Axel Mehlberg was written there. The purpose of the evidence was to show that he saw the words there before the name of Mrs. Johnson was placed to the indorsement. The court struck out such evidence as being incompetent under section 3639 of the Code of 1873. The ruling was right. For the witness to say that he saw the words on the note before Mehlberg’s name was there was to say, in effect, that the words were there when Mrs. Johnson’s name was placed there, which he would not be permitted to do, because it would be testifying as to a personal transaction between himself and Mrs. Johnson, by stating the circumstances under which she signed the note. It is said that, if she were alive, she could not contradict the statement of the witness that he did see the words there before Mehlberg’s name was there, but we think she could. Mehlberg’s name was placed on the note to witness her signature, whichshe knew and, if she knewthat the words were not there when she signed, she could say that they were not there when Mehlberg signed. It is to be said that the indorsement, including the witnessing, was a transaction between Mrs. Johnson and Hartung, at which both were present; and any testimony by Hartung that would disclose the transaction as then seen by him would be within the provisions of the section, and prohibited. It is thought that some language in McElhenney v. Hendricks, 82 Iowa, 657, authorizes such testimony, wherein it is said that “the statute does not exclude the proof of facts from which by inference other facts may be found.” The language is applied to a different state of facts from those in this case, and as applied is correct. [610] III. It is probably well that we should settle the question of the necessity to plead the special defense before it could [611] be proven. Itwill be remembered that a denial of tbe claim was tbe statutory one only, and it is thought that, as the claim of an alteration of the indorsement is a special defense, it should have been pleaded as such, even in a probate proceeding. A statute in force when the cause was tried is as follows: “All claims filed and not expressly admitted in writing, signed by the executor with the approbation of the court, shall be considered as denied without any pleading on behalf of the estate.” Code 1873, section 2410. The section was amended by chapter 75, .Acts Twenty-sixth General Assembly, as follows: “ ‘Provided that the burden of proving that a claim is unpaid shall not be placed upon the party filing a claim against the estate;’ but that the executor or administrator may, on the trial of said cause, subject the claimant to an examination on the question of payment, but the estate shall not be concluded or bound thereby.” The law as amended does not make it necessary to plead special defenses, as in other cases. The present law provides that special defenses must be pleaded. Code, section 3340. The question must be determined under the law as it was when determined below. Under the law as it then stood, the claimant was required to show that he had a valid claim, even to the extent of showing that the signature was genuine, without a compliance with our general statutory provision as to how the genuinesness of a signature can be put in issue. Code 1873, section 2730. We think in this case the issue is such that the question of the liability of the estate for the payment of the note is presented. When the signature to the note is so established as to admit the note in evidence with the indorsements, it may be sufficient, prima facie, to show a right of recovery. If so, it would be a compliance with the rale that the law puts in issue the truth of every allegation and claim which is essential to the plaintiff’s recovery. If afterwards the integrity of the claim is assailed, the right of recovery must depend on the weight of the evidence. For the error in excluding the note when offered in evidence, the judgment must be reversed.