Myer v. Wegener

Deemer, J. [76] 1 2 [75] Defendant and her husband, during his lifetime, lived in the city of Chicago. The wife owned-property in the city' of Council Bluffs, and she gave her husband money with which to come to Council Bluffs and repair her property. Arriving at the last named place, the husband went to plaintiff, and told him he had been given money by the wife; that before leaving Chicago he became intoxicated, and was robbed of the money; and he asked plaintiff to go with him to a bank in Council Bluffs to sign a note as surety with him, so that he could get money with which to make repairs. Plaintiff did as requested, and the husband in this manner procured the money which he afterwards expended in making repairs upon his wife’s real estate. When the note matured, the husband failed to pay, and the plaintiff was compelled to take up the note. Thereafter he went to the husband to have the amount advanced secured to him, and the husband executed a note for the amount, [76] with interest, and took the note thus executed wi.h him to Chicago, promising to have the wife sign, and return to plaintiff after she had affixed her signature. In due time plaintiff received the note by mail, bearing the signature of the husband and what purported to be the signature of the wife. It is the signature of the wife that is denied. While there is a conflict in the evidence regarding the genuineness of the signature, the jury evidently found that it was forged, and with that conclusion plaintiff must be content. lie claims, however, that defendant, by correspondence, ratified the signature, and that any other conclusion is without sufficient support in the evidence. Bearing on this question the trial court gave the following instruction: “If you find from the evidence that the plaintiff informed the defendant by letter that he held a note against her and her husband, and sought payment thereof from the defendant: and if you further find from the evidence that the defendant, with full knowledge on her part of the claim of the plaintiff of liability against her on the note, and the facts and circumstances respecting the indebtedness evidenced by the note, upon which such liability was claimed, wrote the plaintiff in substance and effect admitting a liability thereon, and promising to pay the same — then such action on the part of the defendant would be a ratification on her part of the signature thereon purporting to be hers, and she would be liable the same as if the signature thereto had been her true and genuine signature. On the other hand, however, if the defendant Avas not informed that it was claimed by the plaintiff that she had signed the note, or that her signature was thereto as a maker thereof, and of the facts and circumstances respecting the indebtedness evidenced by the note, -then the defendant would not be held liable as having ratified the same as her own.” There was evidence from which the jury might have found that when defendant Avrote the letters which it is claimed constituted a ratification she did not know her [77] name was signed to the instrument, and abundant evidence that she did not know the circumstances respecting the indebtedness evidenced by the note. There was no error, therefore, in denying plaintiff’s motion for a new trial, based on the proposition that the evidence conclusively established ratification. 3 II. Further claim is made that the italicized portion of the instruction quoted is erroneous, in that there may be ratification without full knowledge of the circumstances. As adoption of the signature was not pleaded, and as the court instructed solely on the theory of ratification, the case will be considered in this aspect- If duly authorized, defendant’s husband, or whoever signed her name to the note, might have bound her by the signature; and, if he had no such authority, but assumed it, it was competent for defendant to ratify the act, and thus confirm what was done. But to constitute ratification it must be shown that the party sought to be charged knew all the circumstances attending the signing, and intended to adopt or ratify the same. This is elementary doctrine, sustained by the following among other authorities: Bank v. Crafts, 4 Allen, 477; Wellington v Jackson, 121 Mass. 157; Gleason v. Henry, 71 Ill. 109. It must be remembered that we are now considering the question of estoppel based on an alleged adoption of, or statement as to the genuineness of the signature. No estoppel is pleaded, and no claim made that the evidence shows an estoppel. Viewed from the standpoint of ratification, which must, under the record, prevail, there was no error in the instruction. If plaintiff desired more specific instructions regarding partial knowledge and defendant’s duty to act thereon, he should have asked them. No prejudicial error appears, and the judgment is affirmed.