Abeel v. Weil

• Court: Texas Supreme Court
• Writing for the Court: Short
• Citation: Abeel v. Weil, 283 S.W. 769, 115 Tex. 490 (Tex. 1926)
• Decision Date: 12 May 1926
• Docket Number: (Nos. 660-4537.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: ABEEL v. WEIL.

283 S.W. 769

ABEEL v. WEIL.

(Nos. 660-4537.)^*

Commission of Appeals of Texas, Section B.

May 12, 1926.

Certified questions from Court of Civil Appeals of Tenth Supreme Judicial District.

Action by Charles B. Weil against Sadie C. Abeel, independent executrix. Judgment for plaintiff, and defendant appeals. On certified questions from the Court of Civil Appeals. Questions answered.

J. D. Williamson, of St. Louis, Mo., and Sleeper, Boynton & Kendall, of Waco, for appellant.

Witt, Terrell & Witt, of Waco, for appellee.

SHORT, J.

This case has reached the Supreme Court through the medium of certified questions voluntarily presented by the Court of Civil Appeals of the Tenth Judicial District, the certificate being as follows:

"This suit was instituted by Chas. B. Weil against Alfred Abeel to recover a personal judgment in the sum of $3,537, with interest. Alfred Abeel died and his executrix and sole devisee, Mrs. Sadie C. Abeel, was made defendant in his stead, both in her individual and in her representative capacities. The parties will be designated as they appeared in the trial court. Plaintiff alleged that one Gustave Lachman had theretofore by written contract leased to the Pathfinder Motor Car Company, a corporation duly incorporated under the laws of the state of California, certain real property situated in the city of San Francisco in said state; that plaintiff shortly thereafter purchased said property and that said lease was transferred to him by written assignment; that the sum sued for was due as unpaid rentals under said lease; that said corporation had forfeited its charter and was insolvent and wholly without assets; that, under the Constitution and laws of the state of California, each stockholder in such corporation was liable to the respective creditors thereof in the proportion that the stock held by him bore to the entire capital stock of said corporation; that at the time said lease contract was made said Alfred Abeel owned 198 of a total of 404 shares of stock issued by said corporation; and that he shortly thereafter purchased 200 additional shares of such stock, and held all the same continuously thereafter. Plaintiff also alleged the death of Alfred Abeel; the probate of his will appointing the defendant sole executrix and making her sole devisee of his entire estate. Plaintiff also described certain tracts of land situated in Waco, Tex., and alleged that said tracts of land were a part of the estate of said testator, and that they were held and owned by defendant under said will as devisee therein. Plaintiff prayed for judgment establishing his demand as a just claim against the estate of Alfred Abeel, deceased, and for recovery against defendant as executrix of said will, and also in her individual capacity, and for foreclosure of lien on the property described, and for sale of such property to satisfy such judgment.

"Defendant answered in her individual capacity. Said answer contained, among other pleas, a general denial and a plea that the estate of Alfred Abeel, deceased, had been fully administered and the property thereof distributed and that she did not have in her hands as executrix thereof any property belonging thereto at the time she was made a party to this suit. There was a trial before the court and judgment in favor of plaintiff establishing his demand in the sum of $2,274.63, with interest from date of judgment, as a just claim against the estate of Alfred Abeel, deceased, and awarding him a recovery for said sum against defendant in her capacity as independent executrix, and a judgment foreclosing a lien upon the property described in plaintiff's petition. The judgment of foreclosure was general, without distinguishing between the rights of defendant as independent executrix and her individual rights as sole devisee.

"Plaintiff, on the trial of the case, for the purpose of proving the execution by said Lachman of said lease contract, offered in evidence from the deposition of his witness I. N. Johnson an interrogatory and the answer of said witness thereto as follows:

"`Q. Is the signature attached to said contract Gustave Lachman's signature? A. Yes; I believe it is.'

"Defendant objected to said answer on the ground that `said witness had not testified that he knew Gustave Lachman or was familiar with his signature, or that he had ever seen him write, or that he saw him sign the purported lease.' The court overruled the objection and admitted said answer in evidence. Predicated solely on said answer as proof of the execution of said lease contract by said Lachman, plaintiff offered said contract in evidence. Defendant objected to its introduction on the ground that `the signature of Gustave Lachman thereto had not been proved nor had the execution of said instrument been properly proved.' Said objection was overruled and the lease contract admitted in evidence.

"This court sustained appellant's assignments complaining of the admission of the testimony of said witness and the admission of the lease contract thereon, and reversed the judgment of the trial court and remanded the cause. For the convenience and information of the court, we quote from our opinion in the case as follows:

"`Plaintiff declared on said lease contract as the basis of his right to the rentals sued for and his right to recover of defendant's testator or his estate as a stockholder in the Pathfinder Motor Car Company, the grantee therein. Proof of said lease was an essential part of plaintiff's case. Neither of the parties to this suit were parties to said lease. Before plaintiff was entitled to have such lease contract admitted in evidence in this case, it was necessary to prove its execution by both parties thereto according to the rules of common law. 22 C. J. pp. 929, 930, § 1138; Lignoski v. Crooker, 86 Tex. 324, 328, 24 S. W. 278, 788; Betterton v. Echols, 85 Tex. 212, 214, 20 S. W. 63; Morris & Co. v. Southern Shoe Co., 44 Tex. Civ. App. 488, 99 S. W. 178, 179; Peterson v. Martinez & Bros., 78 S. W. 401; Sanger v. Jesse French Piano & Organ Co., 21 Tex. Civ. App. 523, 52 S. W. 621; Walker v. T. &. N. O. R. Co., 51 Tex. Civ. App. 391, 112 S. W. 430, 432, 433.

"`The interrogatory under consideration inquired whether the signature appended to said lease was the genuine signature of said Lachman. Had the witness seen said Lachman sign said lease, he would have known that such signature was genuine and would doubtless have so answered. He did not so answer, but stated, in effect, that in his opinion such signature was genuine. Before a witness is qualified, or, in other words, competent, to testify to his opinion or belief that a particular signature presented to him is the genuine signature of another, such witness must be acquainted with the signature or handwriting of such other person. Such acquaintance is not presumed, but must be shown by evidence. Mapes v. Leal's Heirs, 27 Tex. 346, 348, 349; Hanley v. Gandy, 28 Tex. 211, 213, 214, 91 Am. Dec. 315; Haynie v. State, 2 Tex. App. 168, 171; 1 Wigmore on Evidence, p. 1109, § 693, and page 1054, § 654; 11 R. C. L. p. 620, § 41; 1 Greenleaf on Evidence, 577, 22 C. J. § 1161, p. 943, and authorities cited in note 43. The burden of showing that the witness is qualified or competent is on the party offering his testimony. 1 Wigmore on Evidence, p. 1054, § 654. * * *

"`The testimony offered and admitted failed to show that said witness was acquainted with the signature or handwriting of said Lachman and his opinion or belief as to that matter was incompetent, and the court erred in admitting it in evidence. Since the testimony so improperly admitted was the only proof of the execution by Lachman of the lease contract, it follows that the court erred in admitting the same in evidence.'

"Plaintiff has filed a motion for rehearing. He does not in said motion attack the propositions of law on which the case was decided by the court, but he insists most strenuously that we erred in reversing and remanding the cause on account of the admission of the lease contract in evidence. The principal contention urged by him is that there is in the record in this case evidence of sufficient facts and circumstances to show prima facie that said Lachman did execute the identical lease contract so admitted in evidence, and to meet the requirements of the law as to preliminary proof of execution as a predicate for the admission of said contract in evidence.

"The said lease is copied at length in the statement of facts and we here make the same a part of this certificate. Said witness Johnson testified to the due execution of said contract by the Pathfinder Motor Car Company and to his signing the bond or agreement shown at the bottom thereof. Except as shown by such testimony and by the face of said instrument, all the facts and circumstances relied on by plaintiff to show the execution thereof by said Lachman were introduced in evidence after the same had been admitted by the court on the testimony of said witness as above set out. None of such testimony is shown to have been offered on the issue of the execution of said instrument by said Lachman, and there is nothing in the record to show that the court considered such testimony in that connection. One of the justices of this court was formerly of counsel in this case and did not participate in the consideration or disposition of the same. The other two members of the court are of the opinion that there are facts and circumstances in the evidence, considering the same as a whole, exclusive of the testimony of said witness with reference to the purported signature of Lachman to said lease, tending to show that he did sign the same and act thereon, of sufficient probative force to have justified the trial court, in the exercise of his discretion, in holding that the requirements of the law as to preliminary proof of execution of said lease as a predicate for the admission thereof in evidence had...