Griffith v. Hanks

• Decision Date: 28 February 1887
• Citation: 91 Mo. 109,4 S.W. 508
• Parties: GRIFFITH v. HANKS.
• Court: Missouri Supreme Court

4 S.W. 508

91 Mo. 109

GRIFFITH v. HANKS.

Supreme Court of Missouri.

February 28, 1887.

1. PROMISSORY NOTE — FORGERY — QUESTION OF FACT.

Where the question in an action on a promissory note is whether the signature of the maker is genuine or a forgery, and the instructions as given by the court present that question fairly to the jury, the verdict will not be disturbed where there is evidence tending to support it.

2. TRIAL — ADMISSION OF EVIDENCE — CURING ERROR.

In a civil case, error in admitting testimony in behalf of the defendant is cured where an instruction is subsequently given at the plaintiff's request withdrawing in express terms the testimony so admitted from the consideration of the jury.

3. APPEAL — ADMISSION OF EVIDENCE — EXCEPTION.

Where the record fails to show that the plaintiff in error excepted at the time to the ruling of the trial court in admitting evidence over his objection, the correctness of the ruling is not before the appellate court for review.

4. SAME — MOTION FOR NEW TRIAL — ASSIGNMENT OF ERROR.

Error in the refusal of an instruction cannot be reviewed on appeal, where it does not appear from the record that the plaintiff in error in his motion for a new trial assigned such refusal as one of the grounds upon which his motion was based.

Error to circuit court, Scotland county.

Smith & Krauthoff, J. G. Blair, and E. Scofield, for Griffith, plaintiff in error. McKee & Smoot, for Hanks, defendant in error.

RAY, J.

This was a suit upon a negotiable promissory note. The note bore date December 21, 1880, was for the sum of $210, payable to the order of Eagle Machine-Works, at Citizens' Bank, Memphis, Missouri, six months after date, and purported to have been executed and signed by and in the name of John C. Hanks, the defendant, and also purported to have been assigned to plaintiff for value before maturity. The answer was the plea of non est factum, supported by affidavit. The reply, the general issue. At the trial before a jury, the evidence was substantially as follows:

It was admitted by defendant that the payee in said note was a corporation duly organized, and that the note was assigned to plaintiff by its authorized manager, J. C. Farr. The plaintiff, to further sustain the issue on his side, introduced as a witness H. G. Pitkin, who testified that he was acquainted with the defendant, John C. Hanks, and somewhat acquainted with his handwriting; has had some notes on him; has been in the banking and brokerage business for several years, and made the examination of signatures a study. The witness, being handed the note in suit, was asked if he could state in whose handwrite the name of John C. Hanks thereto was, and he said it was in defendant's handwrite. He was then handed plaintiff's admitted assessment lists, and asked to compare the signatures to the same with that to the note, and state if he could say from said comparison in whose handwrite the signature to the note was, and he answered that, in his opinion, it was in defendant's handwrite. On cross-examination, he stated that the signature to the note might not be that of defendant, but that it looked very much like his signature. H. Wine, the county assessor, being sworn for plaintiff, stated that he took the assessment lists of defendant for 1879 and also 1880, and knows that defendant signed the lists himself for one year, and thinks he signed for the other. J. W. Barnes, being sworn for plaintiff, stated that he was a broker, and cashier of Scotland County National bank; that he had made it a part of his business to examine signatures to notes. The witness being handed the note in suit, and defendant's said assessment lists, was asked to compare the signatures to the same, and state his opinion as to said signatures, and he said that, in his opinion, the person who wrote the name to the note also wrote the names to the assessment lists. On cross-examination he said the signature of Hanks was one that would not be hard to counterfeit; that the signature to the note was written in ink, with a pen. Plaintiff then offered in evidence the note in suit, together with the assignment of same to plaintiff, by the authorized manager of said corporation, as well as defendant's said assessment lists, all of which were submitted to the jury, and the plaintiff here rested.

The defendant, being sworn on his behalf, and being handed the note in suit, testified that he never signed said note; that the signature, "JOHN C. HANKS," was not his. He further stated that on December 21, 1880, a man claiming to be the agent of the Eagle Machine-Works of Cleveland, Ohio, came to his home, in company with Smith, from Memphis, Missouri, and said that he had my contract for three corn-crushers at $70 each, and wanted me to pay or give my note for same. "I had never given any contract to buy corn-crushers." Plaintiff here objected to this evidence, tending to show the consideration of said note as being inadmissible in this suit by indorsee for value before maturity. The objection was overruled, and plaintiff excepts to the ruling. The witness then stated that some time in 1880 a man claiming to be the agent of the Eagle Machine-Works called to see him, and wanted him to become local agent for the sale of corn-crushers, and that he signed an agreement to become such, but never signed an agreement to purchase corn-crushers. Plaintiff, as before, objected to this evidence as inadmissible in this suit; and, as before, the court overruled the objection, and plaintiff excepted to the ruling, as before. Defendant then testified that, when the second agent came around, he did sign a note to the Eagle Machine-Works for $210, due in six months, and payable at Citizens' Bank, with 10 per cent. from date; that the note he signed had the words "order of" and "negotiable" scratched out; that he would not sign a negotiable note, and had the above words scratched out. To this, also, plaintiff objected, because the note in suit showed on its face that it had not been defaced, and that the only question was, did the defendant...