Gibbs v. Linabury

• Decision Date: 18 April 1871
• Court: Michigan Supreme Court
• Parties: Graham Gibbs v. Clarkson S. Linabury

22 Mich. 479

Graham Gibbs v. Clarkson S. Linabury

Supreme Court of Michigan

April 18, 1871

Heard April 14, 1871

Error to Oakland circuit.

A statement of the case appears in the opinion.

Judgment reversed, with costs, and a new trial ordered.

John A Fairfield and Crofoot & Brewer, for plaintiff in error in reference to liability on commercial paper executed under such circumstances, cited Foster v. Mackinnon, 4 Law R., 1868-9 (Com. Pleas), 704; Putnam v. Sullivan, 4 Mass. 45; Nance v. Lary, 5 Ala. 370; Fay v. Smith. 1 Allen 477; Wade v. Worthington, 1 Ibid. 561; Wor Co. Bk. v. Dor. and M. Bk., 10 Cush. 488; Gould v. Segee, 5 Duer 260; Hall v. Wilson. 16 Barb. 548.

O. F. Wisner, for defendant in error, to the same point cited Shipley v. Carroll, 45 Ill. 285; McDonald v. Muscatine Natl. Bk., 27 Iowa; Isnard v. Torres, 18 La. An., 103; Rex v. Ruth, cited in Byles on Bills (6th ed.), 245.

OPINION

Graves, J.

Linabury sued Gibbs before a justice and declared upon a note of the following tenor:

"[$ 120.00.] "[Avon, Nov. 3d, 1869.]

"On or before the first day of August, 1870, for value received, [I] promise to pay to Clark & Brooks, or bearer, [one hundred and twenty] dollars, with use, payable at [First National bank in Pontiac.]

"Graham Gibbs."

The defendant pleaded the general issue, and filed an affidavit denying the execution of the note. On the trial before the justice both parties were examined as witnesses, and judgment passed against Gibbs and he appealed.

When the cause was tried in the circuit court the plaintiff first called Gibbs as a witness to prove his signature to the note, and he stated that the signature resembled his handwriting, but that he could not swear that it was his. On being asked if he remembered what he testified to before the justice he replied that he then certified as in the circuit.

The plaintiff then took the stand as a witness in his own behalf, and, after stating that he heard Gibbs testify before the justice, was asked what he there testified to in relation to the signature to the note, which was objected to by Gibbs' counsel, on the ground that the plaintiff had made Gibbs his own witness, and, therefore, he could not contradict or impeach him. The objection was overruled and defendant excepted. This ruling was right. The objection was based on the erroneous assumption that the object was to impeach Gibbs, but the manifest purpose was to prove a fact by one witness which the party had unexpectedly found himself unable to prove by another. The question was whether the name "Graham Gibbs," appearing on the supposed note, was in defendant's handwriting or not, and the defendant having stated that he could not swear that it was, the plaintiff sought to prove the fact in another way, namely, by admission of the defendant in his testimony before the justice. This was competent: §§ 442, 443, 444, 1st Greenl. Ev., and authorities there cited.

The plaintiff then narrated the substance of Gibbs' testimony before the justice, and his explanation of the circumstances which attended the signing of the note, if, in fact it was signed by Gibbs, and this relation was substantially the same as that afterwards given by Gibbs on the stand. The plaintiff having testified, he offered the note in evidence, which was objected to on the ground that its execution had not been sufficiently proved. This objection raised two points: First, that the evidence of handwriting was insufficient, and second, that the circumstances shown by plaintiff to have attended the connection of the paper, in contemplation of law disproved the execution. As to the first point, it is enough to say that there was some evidence before the jury tending to show that the name appearing on the paper was in the handwriting of defendant. Whether it was sufficient, was a question for the jury and not for the court.

The second point is involved in the main question in the case, and will be disposed of when that question is considered. In any view, however, of the point itself, it would have been improper to have excluded the note, since the proper determination of the ground of the objection required the action of the jury upon the facts.

It was not questioned but that the plaintiff acquired the note in good faith before maturity, and paid a valuable consideration for it.

The defendant testified, in his own behalf, that he was a farmer in Troy, Oakland county, where he had lived some twenty years; that on the 3d of November, 1869, a stranger, whose name afterwards appeared to be Brooks, called upon him in the field where he was at work, and stated that he had a patent hay-fork he desired him to look at; that he replied that he did not want the fork; that Brooks then said that he did not want defendant to buy, but wished to make him an agent for the sale of the fork; that he, defendant, stated that he thought the forks could not be sold, there had been so many around; that Brooks then wanted defendant to go and look at the article, and he accordingly went with Brooks to the barn, where they tried the fork; that defendant then declared that he did not want it; that Brooks then said that he would make defendant an agent for the sale of the implement; that it would not cost him anything; that he, defendant, would have nothing to pay unless he sold the forks, and that he, defendant, could not in any event be made liable except for forks sold; that defendant and Brooks then went to defendant's house, where an associate of Brooks appeared, whose name defendant afterwards learned was Hurlburt that defendant and Brooks then had some further talk in the same strain, when defendant agreed to take the agency on the terms specified; that it was then quite late in the afternoon, and "getting duskish," in the language of the witness, and Brooks took out some papers and filled some up, when defendant took one and stepped to the door, where he could see to read, and read it over; that Brooks read another as defendant looked at his to compare, and they appeared, on such reading, to be alike; that when Brooks read the sum $ 120 in the paper, defendant asked him what that was put in for, to which Brooks answered that it was to show what was going to manufacturers after a certain number were sold; that Brooks held the papers, of which there were some twenty or thirty, one above another, except that one which defendant took; that after comparing the papers as before stated, defendant and Brooks went back to the table, and the latter then laid the papers down, one on top of the other; that defendant did not take or look at the third paper in Brooks' hands, but Brooks said it was just like the others; that in placing the papers on the table, Brooks shoved one paper over the other just far enough to leave space at the bottoms for signing, and pointed to the spaces and told defendant to sign there; that at this table it was so dark that defendant could not see where to write his name, except as directed by Brooks, and could not see well enough to read anything there, and could only distinguish the dark lines of the printing and writing from the light color of the paper, and could not read anything there, not even his own signature; that his eyesight had been defective for some years; that after he, defendant, had signed his name three times in the places pointed out by Brooks, the latter left one paper with him and took the others and went away; that Brooks left a fork with defendant, and that he had never seen or heard of Brooks after that interview; that he did not sign any paper then, except as the contracts referred to; that nothing was said about a note during the whole time, nor did he sign, nor was he requested to sign, any paper as such; that if the signature to the paper read in evidence as a note was his, it was obtained as before stated; the defendant then produced the paper left with him by Brooks, which was read in evidence. It purported to be a commission empowering defendant to act as an agent in selling forks, and was a printed blank filled up by writing.

On his cross-examination the defendant stated that he was induced to sign the papers upon Brooks' representations that they were all like the contract he had compared; that relying upon these representations, he signed them; that the papers with his signature to them were taken by Brooks with his knowledge and consent; that he, defendant, was fifty-two years old; that his eyesight was pretty good--good enough so that he could see to do ordinary business without glasses.

It appeared that the letters "G. G." and the date on the stamp on the note were not in the same handwriting or ink as the name of defendant, or as that in the filling up of the papers; that the name "Clark & Brooks" as signed to the contract was not in the same ink as that in the filling up of the note or contract; that the note was upon a printed blank of which all the words were printed except those in brackets.

The court directed the jury that if Brooks obtained the signature of the defendant to the paper, just as claimed by defendant, the latter signing (supposing he was signing a contract, and not a note) and delivering the paper to Brooks, it made no difference whether the paper so signed was at the time a blank note or filled up as a note, if the signature was the handwriting of defendant, and the plaintiff was an innocent purchaser for a valuable consideration, and before maturity, the plaintiff was entitled to recover. The requests of defendant, which were in accordance with the doctrine declared in Foster v. Mackinnon and Whitney v. Snyder, hereafter referred to, were refused.

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