Vinton v. Peck

• Citation: 14 Mich. 287
• Court: Supreme Court of Michigan
• Decision Date: 05 May 1866
• Parties: Porter Vinton v. Horace B. Peck

14 Mich. 287

Porter Vinton v. Horace B. Peck

Supreme Court of Michigan

May 5, 1866

Heard April 3, 1866; April 4, 1866 [Syllabus Material]

Error to Kalamazoo circuit.

This suit was brought by Horace B. Peck as indorsee against Porter Vinton, as maker of a negotiable promissory note.

It appears that the note was post dated; that it was in fact executed by Porter Vinton, and delivered to the payee, Z. H Bullard, on the first day of June, 1862, which was Sunday, at which time it was dated June 2d, 1862. That it was without consideration between the maker and payee, being given for the accommodation of the payee, to enable him, by negotiating it, to raise money thereon. That on Monday, June 2d, the day the note bears date, it was indorsed in blank by the payee Z. H. Bullard, and sold and delivered to the plaintiff below, Horace B. Peck, for the sum of $ 77. That said plaintiff had no notice of its character, either that it was an accommodation note, or that it was executed on Sunday, but received it in good faith, supposing it to be business paper, and actually executed on the day it purported to be.

The note was admitted in evidence under objection, and judgment for principal and interest rendered for plaintiff below.

Judgment affirmed, with costs.

Stuart & Edwards, and H. F. Severens, for plaintiff in error:

1. The making and delivery of a promissory note on Sunday is void: 1 Comp. L., § 1574.

The statute takes away the legal capacity of the maker to make such an instrument on Sunday: 12 Mich. 378.

Proof of the making of the note is essential to enable an indorser to recover; and this discloses that the maker was legally incapable of making the note on that day. And it is a rule that a bona fide holder is not protected against the defense of incapacity however created: 1 Pars. Notes and Bills, 275.

2. There is no estoppel here. In order to create one, the representation relied upon to establish it must be extrinsic to the paper itself; otherwise no defense, whether of fraud, want or capacity, duress, gaming or usury, could be interposed when the note purported to be valid on its face. This cannot be insisted on: 13 N. Y., 599-638; 22 Id. 342; 4 Duer 408.

3. The plaintiff in this case is not a bona fide indorsee, within the meaning of the law of merchants, and therefore not protected by its peculiar rules; for,

a. He did not take the note at its face, but for a less sum: 16 Barb. 548; 7 Allen 407.

b. Being accommodation paper lent by defendant to Bullard, it first became legally operative in plaintiff's hands: 10 Gray 349; 7 Allen 407; 2 Denio 621; 22 N. Y., 312; 1 Kern. 368; 1 Hill 9; 8 Cow. 669; 36 Barb. 585.

The date of a note is of no consequence, except for the purpose of determining the time of payment; and the time of delivery may always be shown.

4. The court erred in permitting the witnesses to make a comparison of handwriting, and stating their conclusions to the jury.

The great majority of the cases are against allowing any witness to make a comparison of the handwriting of the signature in question, with other admitted signatures, and then giving an opinion upon the genuineness of the one in dispute, but have generally allowed the jury to make the comparison by contrasting the disputed signature with that of any other documents relevant to the issue already in the case. This is the well established rule in England: 2 Phil. Ev. (Cow. & H. notes), 615-6, and n. 2, and 483; 5 A. & E., 514-703; Roscoe Crim. Ev., 163; 2 Starkie Ev., 374, note h (6th Am. ed.); Peake Ev., 155 (5th ed.)

And it is likewise the rule in nearly all the states: 7 Pet. 763; 1 Denio 343; 13 Barb. 42; 1 Penn. 161; 26 Id. 388; 8 Gill. 77; 1 Iredell 16; 2 Ala. 703; 5 Id. 547; 13 B. Mon., 258; 21 Ill. 375; 15 Ind. 271.

J. C. Burrows, for defendant in error:

1. The court below did not err in allowing the note to be introduced in evidence under the objection that it was void, and therefore immaterial. For a promissory note, executed and delivered to the payee on Sunday, is not void in the hands of an indorsee who receives it without notice of its infirmity: Story on Prom. Notes, §§ 191, 192, 193; 2 Hill 499; 6 Wend. 615; 3 Gray 215; 9 Id. 329; 19 N. H., 423; 4 Mass. 156; 3 B. & C., 233.

2. The court below did not err in charging the jury that the defendant was precluded from setting up as a defense that the note was made on Sunday, by having issued the same as made on a legal day.

The plaintiff below bought the note in good faith, having no notice of its fraudulent dating. Defendant cannot take advantage of his own wrong.

3. The plaintiff being a bona fide purchaser, was entitled to recover of the maker the face of the note and the interest: Story on Prom. Notes, § 194; Edw. on Bills and Notes, 315; 3 Esp. 46; 1 Id. 261; 13 Johns. 52; 16 Pet. 1-24; 5 Allen 330.

Campbell, J. Christiancy and Cooley, JJ. Martin, Ch. J. concurred.

OPINION

Campbell J.:

Peck sued Vinton upon a promissory note, dated June 2d, 1862, and payable three months after date to the order of Z. H. Bullard, who indorsed it to Peck. Bullard testified that the note was made for his accommodation on Sunday, June 1st, and delivered to him, and that on Monday he indorsed it and put it into the hands of an agent, one Alley, to negotiate. Upon offering to read the note in evidence, it was objected to, because made on Sunday. The court admitted it in evidence, and Vinton excepted.

We do not think the objection well founded. This note bore upon its face a legal date, which was placed upon it for the express purpose of obtaining credit for it as a lawful instrument; and it would certainly be valid in the hands of a bona fide holder. The statute has not declared that notes made contrary to the Sunday law, shall be void under all circumstances. Their invalidity is only to be implied from the prohibition of Sunday business, and under such a statute, a bona fide holder is protected: Rockwell v. Charles, 2 Hill 499; Vallett v. Parker, 6 Wend. 615. And, apart from this rule, where steps are taken to induce a belief that a note was not made on Sunday, we should not be prepared to hold that a party could assert his own fraud, in his defense.

Vinton, upon the trial, set up in defense that the note was either altered or forged, claiming he gave no note for more than eight dollars, whereas the note sued on was for eighty. One George T. Clark was called for Peck, and swore that he had been a conveyancer and notary public for twenty-five years, and was familiar with Vinton's handwriting, and that the note was genuine. He was then asked whether, in his opinion, the word eight had been altered to eighty since its execution. This was objected to, and the objection overruled, and an exception taken. He stated that he thought it had not been altered, and on cross-examination stated the "y" could not have been added, because of its relation to other letters. This testimony was proper. The witness was engaged in a business which would be quite apt to familiarize him with all the ordinary appearances of writings, and the addition of a letter, after a document has been finished, is so generally adapted to give it a peculiar and recognizable appearance, that no great amount of experience would be necessary to detect it in ordinary cases. The value of a witness's belief must depend upon circumstances, but it is proper to go to the jury like other questions upon the genuineness of writings. It is very true that the jury may examine the paper for themselves, and that opinions are not usually admissible where the jury can form their own conclusions unaided. But we do not think it would be safe in this country to adopt a rule which assumes such a degree of knowledge and skill among jurors. Even reasonably expert writers may obtain valuable aid from opinions on such questions, and as neither law nor custom requires our juries to meet any standard of education, we think that to exclude such aid would lead to absurd results. The most enlightened courts have availed themselves of such assistance, and we deem it wise to use it in all cases where it is at hand. It can do no harm, at all events, and must often be indispensable to justice.

It is also assigned as error that several witnesses were allowed to compare the note in suit with the appeal bond and affidavit on file in the cause, which were admitted to be signed by Vinton. It is claimed that they were not shown to be experts. In proving handwriting in general there is no rule which requires any particular amount of skill in the witness. Any one who has had the proper facilities, and who can swear to a knowledge of the handwriting in question, has always been admitted. There are undoubtedly questions presented at times, which require greater skill than others, but such cases stand on their own grounds. It is a matter of common experience that all persons who can write at all can attain some familiarity with the handwriting of others, and we can find no test which would be at all practicable, except that of leaving their skill and capacity to be determined by the jury who hear them examined.

A more serious question is, whether the comparison here resorted to was admissible at all. It has very commonly been said that a witness must obtain his knowledge of handwriting by seeing the party write, or from papers in his own possession which he knows to be genuine, by recognition, or dealing mutually had on their credit. Proof by comparison of hands on the trial has not always been deemed competent, and there are many authorities which deny its admissibility at all. Upon a subject which has been so much discussed, and upon which there is so wide a variance of opinion, we think the safest course is to satisfy ourselves...