Anderson v. Walter

• Decision Date: 06 June 1876
• Citation: 34 Mich. 113
• Court: Michigan Supreme Court
• Parties: John Anderson and others v. Moses Walter

34 Mich. 113

John Anderson and others v. Moses Walter

Supreme Court of Michigan

June 6, 1876

Heard April 6, 1876; April 7, 1876

Error to St. Joseph Circuit.

Judgment affirmed, with costs.

Upson & Thompson, for plaintiffs in error.

H. H Riley, for defendant in error.

OPINION

Marston, J:

Plaintiffs in error, claiming to be bona fide holders of a negotiable promissory note executed by the defendant, brought an action of assumpsit to recover the amount thereof. The defendant pleaded the general issue, and filed therewith an affidavit setting forth that the signature to the note declared upon he believed to be his, but that the same was procured under circumstances, fully set forth, which would render him not liable thereon.

Upon the trial, after plaintiffs had introduced evidence tending to show that they were bona fide holders, which was not disputed, the defendant offered evidence tending to show that he never signed the note. This was objected to as irrelevant and immaterial, and also because the defendant, in the affidavit attached to his plea, had not denied its execution. This latter objection was made and overruled several times during the progress of the trial, and indeed forms the basis for most of the plaintiffs' exceptions.

As was said in McCormick v. Bay City, 23 Mich. 457, "We do not think an affidavit of this kind should be subjected to any very technical rules of construction. If it appears that a defendant means to contest the execution or delivery in good faith, any legal questions concerning the sufficiency of the defense should be reserved for the trial, when the facts could all be presented. It never was designed that a defendant should be compelled in his affidavit to state every fact, but merely to indicate his defense or to make a plain denial." Tested by this rule, the affidavit in this case could not be treated as an admission of valid execution. A defendant cannot be required to swear that the signature appearing upon an instrument is not his genuine signature in order to deny the execution. The signature may be genuine, and yet the instrument a forgery. In such a case he could not deny the signature under oath. He would admit it, but set up facts from which it would appear that he was not bound by, or ever executed the instrument sued upon. We think the denial in this case was sufficient, and it will not be necessary to consider this question again in reference to the modifications of plaintiffs' requests to charge, which assumed the contrary.

The court permitted defendant's counsel, upon cross-examination of plaintiffs' witness Simons, to inquire of him respecting what took place the next day between Kimball, the payee of the note, and other parties concerning similar transactions. Simons had testified that he was present at the time the note in question was executed and delivered by defendant to Kimball, and that he was there as the agent or servant of Kimball. The defense claimed that the signature to the note, if signed at all by the defendant, was obtained under false and fraudulent circumstances, and that Simons was a party to the fraudulent transaction. As tending to show this, and for the purpose of affecting his credibility as a witness, they made these inquiries. In cases of this kind a very wide latitude should be allowed upon cross-examination. Much must be left to the discretion of the trial judge. We think the inquiry was pertinent and proper to go before the jury to be considered by them in weighing Simons' testimony.--Bissell v. Starr, 32 Mich. 297.

The most important questions yet remain to be considered. The execution of the note having been denied, plaintiffs introduced evidence tending to show that defendant did sign it, and they claimed that even if he did not knowingly and willingly sign the note, yet that he was guilty of such negligence in signing it that they as bona fide holders were entitled to recover. In order to fully understand and appreciate the charge of the court as given, and the refusals to charge complained of, it becomes necessary to quote at some length the evidence given in the case bearing upon the question of execution. Two witnesses only were examined upon this branch of the case: one, the defendant; the other, J. W. Simons, who was present with Kimball at the time, as claimed, the note was signed by the defendant.

There was no dispute but that on the day the note purported to have been executed, F. M. Kimball, accompanied by Simons, visited defendant at his residence; that Kimball sought to and did induce defendant to agree to act as an agent for the sale of a sulky wheel cultivator, and that an agreement in duplicate to that effect was then signed by both Kimball and defendant, each retaining a copy.

Defendant testified, after speaking of the inducements held out to him to become an agent: "I finally said, I will take the agency, if it wouldn't be anything out of my pocket at all, and do what I could; if I could sell any it was good, and if I couldn't it was good, and so at last I agreed to go agent; and asked him how long the agency should last, and he said from one year to ten,--I could throw it up any time I had a mind to. So at last I consented, and he went to filling out them two papers. He took them out of a satchel, I believe. The paper now shown me is one of them that I signed. After he took the papers out he gave me one. I am a poor scholar. I can read the writing. I can read this here. And he told me I should follow him, and he commenced reading, and he read so fast that I couldn't keep up. I was standing there; Simons was in the buggy. * * * I would not like to tell you that he read the instrument through; I couldn't tell you, he read so fast. I am a poor scholar. I can't read it. * * I signed it out there in the road. I had a corn basket, and I think I laid both the papers down on it at a time and signed them; nothing on the corn basket but the two papers, and I signed them out there on the cover of the corn basket. After the signature to the two papers was made by me he read them again. He wanted me to look for him, and he read the other to see if they would correspond. He held one and I held the other one. * * I saw no such note as the one now shown me at that time. I never signed that note knowing it to be a note; never showed me a note to sign. I signed nothing only the two papers. * * * There was nothing said during that conversation between me and Mr Kimball about a promissory note. * * Kimball said nothing to me about security. I signed only two times. The signature to the note in suit shown me is similar to my hand-writing, but I never signed that note. It was never presented to me."

Simons testified: "I know defendant; have seen note in suit before; first saw it on the day it was given. I saw it signed and executed. Mr. Walter signed it. I was sitting in a buggy in front of his house at the time. It was in a small note book when he signed it. * * The note was dated on the day it was signed. I saw Moses Walter sign three papers,--two agency papers,--and one he kept and one Mr. Kimball kept. This note was executed there in a book. The agency papers were signed first. * * * He (Walter) spoke of several neighbors who though of getting cultivators, and he thought he could sell them some, and he finally concluded that he would take the agency, and Mr. Kimball went on and drew up the agency papers, and also the note in the note book. Mr. Walter signed the agency papers, and also the note in the note book. Mr Walter signed the agency papers, and Mr. Kimball handed him the note book, and Mr. Walter read it, or a portion of it. He continued to read it but some words he could not make out very distinctly,...