Haynes v. Christian

• Decision Date: 05 April 1888
• Citation: 30 Mo.App. 198
• Parties: ALBERT H. HAYNES, Defendant in Error, v. RICHARD H. CHRISTIAN and DAVID ROBERTS, Plaintiffs in Error.
• Court: Kansas Court of Appeals

30 Mo.App. 198

ALBERT H. HAYNES, Defendant in Error, v. RICHARD H. CHRISTIAN and DAVID ROBERTS, Plaintiffs in Error.

Court of Appeals of Missouri, Kansas City.

April 5, 1888

ERROR to DeKalb Circuit Court, HON. JOSEPH P. GRUBB, Judge.

Reversed and remanded.

The case and facts are stated in the opinion of the court.

J. F HARWOOD and RAMEY & BROWN, for the plaintiffs in error.

I. There being no evidence that defendant Roberts executed the notes sued on, other than that he signed them " with his own hand," the court erred in instructing the jury that they might find against him if they believed he authorized some other persons to sign it for him. It was error to give an instruction not predicated upon the evidence. Skyles v. Bollman, 85 Mo. 35; Type Foundry v. Printing Co., 3 Mo.App. 142, 150; Bank v. Overall, 16 Mo.App. 510. And this error is not cured by the giving of a proper instruction on that point for the defendants. If the jury considers them both, their verdict will be simply guess-work. Fredericks v. Allgaier, 88 Mo. 598; Singer Co. v. Hudson, 4 Mo.App. 145; State v Laune, 1 Mo.App. 371.

II. It is erroneous to give inconsistent instructions. Henschen v. O'Bannon, 56 Mo. 280; Price v. Railroad, 77 Mo. 508; Stevenson v. Hancock, 72 Mo. 612; Lampert v. Gas Co., 12 Mo.App. 576; Goetz v Railroad, 50 Mo. 472. So far from correcting the evils of either, the contradiction multiplies them in both. State v. Nauert, 2 Mo.App. 295. The error in this case was particularly vicious, on account of the introduction of the letter claimed to have been written by Christian. This pretended letter purported to acknowledge the execution of the notes sued on, by Roberts as well as the writer. As this was the only item of evidence in the case to which the instruction complained of could, by any stretch of the imagination, be applied, it not only presented an issue not in the evidence, but also carried with it the hint that the pretended letter was in some way evidence against Roberts.

III. The plaintiff, having introduced a letter purporting to have been signed by Christian, acknowledging the execution of the notes sued on, and evidence having been introduced by defendants tending to prove the letter a forgery, the plaintiff ought not to have been permitted to break the force of a comparison of the signature upon this letter with Christian's signature upon the notes by proving that Christian signed his name " different ways." The question before the jury was as to whether or not he signed it in the " ways" in which it appeared upon the papers in evidence.

IV. The notes in suit, and those offered in evidence by defendants, purport to have been signed by the same person, are made payable to the same person, and had never passed out of his hands until the day suit was brought on them. If the notes were forged, as claimed by defendants, the making and presentation of them constitute a single fact, done for the purpose of defrauding the defendants out of the aggregate sum expressed in them. The test of admissibility is, " whether the circumstances offered in proof were contemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character." 1 Greenlf. on Evid., sec. 108.

CASTEEL & HAYNES, for the defendant in error.

I. There was evidence upon which to predicate instruction number one, given for plaintiff. Any evidence tending to show that defendant Roberts admitted the indebtedness, or that he would pay the notes off if plaintiff would put no more costs on them, would authorize that part of the instruction to which defendants object, viz., " or caused to be signed their names to the notes in controversy." Ridens v. Ridens, 29 Mo. 470. Where there is any evidence tending to prove an issue made by the pleadings, a party is entitled to have it passed on by a jury under proper instructions. McFarland v. Bellows, 49 Mo. 311; Claflin v. Rosenberg, 42 Mo. 439; Bowen v. Lazalere, 44 Mo. 383; Beauchamp v. Higgins, 20 Mo.App. 514; Henry v. Hines, 18 Mo.App. 497. Then it follows that if instruction number one, given for plaintiff, was proper, defendant Roberts cannot be heard to complain that instruction number one, given at his instance, conflicts with the one given for plaintiff, when such conflict constitutes an error in his own favor. Alexander v. Clark, 83 Mo. 482; Musser v. Adler, 86 Mo. 445.

II. There was no error in permitting Buck to testify that Christian signed his name in different ways, especially in view of the fact that the affidavit denying his signature to the notes in controversy, and admitted to be Christian's signature, was signed by R. H. C. Christian. It did not tend to break the force of a comparison of the signature upon the letter introduced, with his name signed to the affidavit and his name signed to the notes in controversy. It only went, in fact, to the number of initial letters he used in signing his name, and Buck's testimony was, that he signed it in both ways, or in " different ways."

III. That the court did not err in refusing to permit the defendants to produce in evidence for comparison, or for the purpose of showing that they were forgeries, other notes purporting to have been given to plaintiff by defendants, seems to be the well-settled law of this state. State v. Clinton, 67 Mo. 380. Comparison of handwriting is only admissible when other writings in evidence in the case on trial are conceded to be genuine; then such writings may be used as standards of comparison, and the comparison may be made by the jury, with or without the aid of experts. Then such papers can only be used when no collateral issue can be raised concerning them. 1 Greenl. on Evid., sec. 581; State v. Clinton, 67 Mo. 380; Rose v. Bank, 91 Mo. 399, and cases cited. The admission of the notes in evidence, and permitting defendants to prove that their signatures to them were forgeries, would have raised an issue collateral to that raised by the pleadings in this case, and would have been improper.

RAMEY & BROWN and HARWOOD, in reply.

The brief of defendant in error admits that the contradictory instructions given in this case constitute reversible errror, unless it is affirmatively shown by the record that the error was in the instruction for defendants. No one will doubt that this statement of the law is as favorable for plaintiff as it can be made. In order to make that view of the law avail plaintiff to sustain this judgment upon the record before us, this court must hold that had the plaintiff sworn upon the trial that defendant Roberts signed the note in his presence, and immediately handed it to him, and afterwards came to him and acknowledged that he owed the amount stated in the face of the note, it would have been error for the court to have instructed the jury to find for the defendant Roberts, unless they believed he signed it himself, as stated by plaintiff. The cases cited in plaintiff's brief have no bearing upon the point made as to the rejection of the other forged notes.

HALL J.

This was a suit begun before a justice of the peace on three promissory notes, purporting to have been executed by the defendants, and payable to plaintiff. The defence was non est factum. The case was taken by appeal to the circuit court from a judgment by the justice of the peace in favor of the defendants. The defendants introduced evidence tending to show that the notes in suit were forgeries. The bill of exceptions then recites: " Defendants then produced the transcripts of three other suits now pending in the DeKalb circuit court on appeal from W. M. Stigall, the same justice of the peace before whom this suit was instituted and tried, all of which suits were instituted on the same day on which this suit was instituted before said justice, in each of which said suits this plaintiff was the plaintiff and these defendants were defendants. In one of said suits plaintiff sued on a note dated June 25, 1885, for one hundred and forty dollars, payable six months after date, purporting to be signed by one C. W. Christian, together with these defendants, which said note was attached to said transcript. In another of said suits plaintiff sued on one note dated August 19, 1885, for twenty dollars, due on or before February 19, 1886, purporting to be signed by these defendants; also one note dated July 28, 1885, due seven months after date, for thirty dollars, purporting to be signed by these defendants: one note, dated June 1, 1885, for twenty-two dollars, due eight months after date, purporting to be signed by these defendants. In another of said suits plaintiff sued on one note, dated March 2, 1885, for sixteen dollars, due ten months after date, purporting to be signed by one C. W. Christian, together with these defendants; also one note dated September 8, 1885, due on or before September 12, 1885, for seventeen dollars, purporting to be signed by one C. W. Christian, together with these defendants, all of which said notes above described, were, on the face thereof, payable to this plaintiff.

The defendants thereupon offered to prove, by legal and competent evidence then and there produced and offered by them, that neither of the notes above described, excepting said note for one hundred and forty...