Cunningham's Admr., &C., v. Speagle
| Decision Date | 22 March 1899 |
| Parties | Cunningham's Administrator, Etc. v. Speagle. |
| Court | Kentucky Court of Appeals |
APPEAL FROM FAYETTE CIRCUIT COURT.
B. T. SOUTHGATE AND GEORGE R. HUNT FOR THE APPELLANT.
JUDGE GUFFY DELIVERED THE OPINION OF THE COURT.
On the 17th of February, 1896, the plaintiff (now appellee), Ella C. Speagle, instituted this action in the Fayette circuit court against the appellants. It is substantially alleged in the petition that Rachel Cunningham on the 9th of June, 1887, executed to the plaintiff her promissory note for $150, due in 36 months, with interest at 6 per cent. The petition also shows that the obligor is dead, and that Marshall is her administrator, and that the other defendants are heirs at law. Said note reads as follows:
It further appears from the petition that the note is entitled to a credit of $12.50 as of the date of the note.
The first paragraph of the answer is a plea of non est factum, and the second paragraph pleads no consideration.
The reply denies that the note was without consideration, but does not show what the consideration was. A jury trial resulted in a verdict and judgment for plaintiff for $137.50, with interest "from this date," and costs. The date of the rendition of the judgment seems to be February 5, 1897. Defendants' motion for a new trial having been overruled, they prosecute this appeal.
The grounds relied on for a new trial are, in substance, as follows: (1) Error of the court in admitting improper and incompetent evidence to go to the jury, and in excluding proper and competent evidence (2) Because the verdict is not sustained by the evidence, and is contrary to the law. (3) Because of misconduct of plaintiff's attorney in commenting on evidence in his argument before the jury.
The plaintiff was introduced as a witness on her own behalf, and stated that she knew Rachel Cunningham, and had known her from childhood, and that she died in 1890 or 1891, and had no property, that witness knew of, except her home, on De Rood street. J. M. Armstrong was a tenant of witness in 1887, and died in 1890. She was then asked whether she saw J. M. Armstrong sign his name as attesting witness to the note, to which objection was made by defendants, and sustained by the court. She was next asked whether or not she was familiar with the handwriting of J. M. Armstrong, from having seen him write. She answered: "Yes; I am." The next question was: Defendants objected which objection was overruled, with exceptions. The witness answered: "Yes; that is his writing — his signature." The note was then offered in evidence, and over defendants' objection was read to the jury, and also shown to them. The contract was then shown to the witness, which was also attested by the signature of J. M. Armstrong, and over the objection of defendants she was permitted to prove the handwriting of Armstrong; and the contract was then read in evidence. The contract reads as follows:
The testimony of plaintiff tends to show that she (plaintiff) was at the time worth several thousand dollars, and that Rachel Cunningham was an old negro, probably 65 years old; that she was very poor, and had nothing except her property on De Rood street, which was worth $150 or $200; and that she made a living by washing for negroes, and raised a little garden in her yard. Armstrong was a brakeman on the Cincinnati Southern Railroad, and he died in 1890 or 1891. His mother and family live in Lexington. I have seen him write a number of times, but I have no writing done by him. I am not in the habit of lending money to negroes."
It was then admitted that the note and contract, and the name of Rachel Cunningham signed thereto, are all in the handwriting of plaintiff, Ella C. Speagle.
The next witness was the attorney for plaintiff, who stated that he was the attorney for plaintiff, and that he put the $12.50 credit on the back of the note sued on, and that he put the credit there at plaintiff's request; she having told him that she had furnished $12.50, less than the $150. To all these statements defendant's attorney excepted.
Plaintiff's attorney then offered in evidence various receipts, purporting to be the receipts of Rachel Cunningham to Speagle, in amounts from one to three dollars, all in Speagle's handwriting, and signed, "Rachel Cunningham, her mark;" but no mark is put in, and no attesting witness.
George Stout testified that J. M. Armstrong was his brother-in-law, and that he had known him all his life; that Armstrong could write his name, but not well; that witness was familiar with his handwriting, and knew his signature. Armstrong's alleged signature being shown to him, he said: The statement of counsel in his argument, complained of, is as follows: "In reply to Mr. Southgate's comment on my not bringing Armstrong's family here to prove his signature, I will say that this was originally a chancery case, and in such cases depositions are allowable, and I took the deposition of Underwood, who was Armstrong's father-in-law, to prove his signature, but the court would not allow it read; and my client ought not to suffer on account of the ignorance of her attorney." To all of which defendants objected and excepted.
It is perfectly manifest that the court erred in allowing plaintiff's attorney to testify as to the $12.50 credit being placed upon the note, and especially to detail the statement made concerning the same to him by the plaintiff. We are further of opinion that the statement of the attorney in his argument to the jury should not have been made or permitted, if objected to. The receipts offered in evidence do not appear to be copied in this record, and we can not, therefore, pass on the question of their admissibility as evidence. We are further of opinion that the execution of the so-called contract in regard to the mortgage should not have been admitted, first, because its execution was not sufficiently proven, if, indeed, the contract was evidence at all, which might be well doubted.
It is earnestly insisted for appellants that the court erred in allowing plaintiff to testify that the signature of the subscribing witness to the note was the handwriting or genuine signature of the witness. Subsection 2, of section 606, provides, in substance, that no person shall testify for himself concerning any verbal statement of, or any transaction with, or any act done or omitted to be done by an infant under fourteen years of age, or by one who is of unsound mind or dead, when such testimony is offered to be given, except for the purpose and to the extent of affecting one who is alive, and who, when over fourteen years of age and of sound mind, heard such statement or was present when such transaction took place or when such act was done or omitted; subject, however, to several exceptions as stated in the Code, none of which are claimed to exist in the case at bar.
The main question for decision is whether the proof of the genuineness of the handwriting of the witness can be made by the plaintiff herself, the alleged obligor being dead. It has been repeatedly held by this court that the object of the statute supra was to place the decedent and his live antagonist upon a perfect equality, and, inasmuch as the decedent could not speak or testify of the transaction, that the party claiming the right to enforce the same, or deriving a benefit therefrom, should not be heard to testify in respect thereto.
It is said in Underhill on Evidence (page 441): * * *"
And on page 442 it is said: ...
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