Bane v. Guinn

• Decision Date: 26 December 1900
• Citation: 7 Idaho 439,63 P. 634
• Parties: BANE v. GWINN, EXECUTOR
• Court: Idaho Supreme Court

63 P. 634

7 Idaho 439

BANE v. GWINN, EXECUTOR

Supreme Court of Idaho

December 26, 1900

GENUINENESS OF SIGNATURE-EVIDENCE-COMPARISON OF HAND-WRITING.-In this state, in an action involving the genuineness of a signature only such papers as are admitted in evidence in the case for other purposes, and such as are admitted to be genuine should, except in very exceptional cases, be admitted for the purpose of comparison. Where, as in the case at bar, the verdict is against the evidence, there being no substantial conflict in the evidence, the judgment based upon such verdict will be leversed upon appeal.

(Syllabus by the court.)

APPEAL from District Court, Canyon County.

Reversed and remanded; costs to the appellant.

Hawley & Puckett, for Appellant.

When a want of consideration is pleaded, as it is here, in an action upon a promissory note, it simply devolves upon the defendant by a preponderance of evidence to prove that no consideration was given. If no evidence was introduced, the presumption of consideration prevails, but when evidence has been introduced by defendant, the burden is thrown upon the plaintiff to satisfy the jury by a preponderance of evidence that there was a consideration. (6 Am. & Eng. Ency. of Law, 763, 764, and notes; Campbell v. McCormack, 90 N.C. 491; Small v. Clewley, 62 Me. 155, 16 Am. Rep. 410; Delano v. Bartlett, 16 Cush. (Mass.) 364; Bank v. Seymour, 64 Mich. 59.) The gift of a donor's own promissory note, either intervivos, or in view of death, does not create an enforceable obligation in favor of the donee against the donor or his estate. (Tracy v. Alvord, 118 Cal. 655, 50 P. 757; 1 Daniel on Negotiable Instruments, 25; Bartlett's Petition, 163 Mass. 509, 40 N.E. 899; Sanborn v. Sanborn, 65 N.H. 172, 18 A. 233; Matter of James, 146 N.Y. 78, 48 Am. St. Rep. 774, 40 N.E. 876; Shaw v. Camp, 160 Ill. 425, 43 N.E. 608.) It is a rule of law that before a witness will be permitted to testify to a person's handwriting from knowledge derived from seeing papers purporting to be written by him, it must be clearly shown in the first instance that such papers were in such person's handwriting. (Brigham v. Peters, 1 Gray, 139; Cunningham v. Hudson River Bank, 21 Wend. 587; Sartor v. Bollinger, 59 Tex. 411; Gugett v. Bolton, 46 Vt. 228; Gibson v. Trowbridge, 96 Ala. 357, 11 So. 365.) Can writings otherwise not admissible by reason of their being irrelevant to the issue in a cause, be introduced in evidence for purposes of comparison. The principal grounds for the exclusion of irrelevant writings as a standard of comparison are, first, danger of bias or unfairness in the selection of specimens, and, second, the danger of raising collateral issues. (Caulkins v. State, 14 Ohio St. 222; Baker v. Haynes, 6 Whart. (Pa.) 284, 36 Am. Dec. 224; Moody v. Rowell, 17 Pick. 490, 28 Am. Dec. 317; Depew v. Place, 7 Pa. 430; Travis v. Brown, 43 Pa. 16, 82 Am. Dec. 540; Jumpertz v. People, 21 Ill. 420.) The decisions of the various states favoring the doctrine of admission of exemplars for the purpose of comparison only, endeavor to show that many jurisdictions favor such practice and uphold such contention, although no statute is in force upon the subject. (Morrison v. Porter, 35 Minn. 425, 59 Am. Rep. 331; 29 N.W. 54; Tyler v. Todd, 36 Conn. 218; Moody v. Rowell, 17 Pick. 490, 28 Am. Dec. 317; State v. Hastings, 53 N.H. 452; Adam v. Field, 21 Vt. 526; State v. Ward, 39 Vt. 225; Farmers' Bank v. Whitehill, 10 Serg. & R. 110; Travis v. Brown, 43 Pa. 9, 82 Am. Dec. 540; Chance v. I. & W. G. R. Co., 32 Ind. 472; Macamber v. Scott, 10 Kan. 355; Wilson v. Beauchamp, 50 Miss. 24.)

Brown & Cahalan and W. E. Borah, for Respondents.

As to the question as to the genuineness of the signature, we were compelled, upon both sides, to rely upon the testimony of those who were acquainted with his signature and those who testified from exemplars admitted to be in his handwriting. We introduced the merchants, the banker of the deceased and those who had known him and were acquainted with his signature. The defense, it is true, presented evidence against this of the same kind of witnesses, but it was all a question of fact for the jury, and the jury having passed upon the matter, is final. The last announcement of this rule, by our supreme court, is found in the case below, where it is said: "Where there is a substantial conflict in the testimony, the verdict of the jury will not be disturbed on appeal." (Simpson v. Remington, 6 Idaho 681, 59 P. 360; Spalding v. Railway Co., 5 Idaho 528, 51 P. 408; Sears v. Flodstrom, 5 Idaho 314, 49 P. 11; Commercial Bank v. Lieuallen, 5 Idaho 47, 46 P. 1020.) Counsel claim that there was no delivery or consideration. The possession of the note by plaintiff is proof of delivery. "Possession of a note by the payee is presumptive evidence of its delivery." (Garrigus v. Home Society, 3 Ind.App. 91, 50 Am. St. Rep. 262, 28 N.E. 1009.) The note itself imports a consideration. (Winters v. Rush, 34 Cal. 106; Flint v. Phipps, 16 Ore. 437, 19 P. 549; Stewart v. Street, 10 Cal. 372; Perot v. Cooper, 17 Colo. 80, 28 P. 391, 31 Am. St. Rep. 258; Brumback v. Oldham, 1 Idaho 710; Bagley v. Eaton, 10 Cal. 126; Poncin v. Furth, 15 Wash. 201, 46 P. 241.) "Courts, both of law and of equity, refuse to disturb contracts on grounds of mere inadequacy, whether the consideration is of benefit to the promisor or of injury to the promisee." (Caldwell v. Ruddy, 2 Idaho 1, 1 P. 339; Worth v. Case, 42 N.Y. 362; Earl v. Peck, 64 N.Y. 596; Daggett v. Simons, 173 Mass. 340, 53 N.E. 907, 46 L. R. A. 332; Gardner v. Merritt, 32 Md. 78, 3 Am. Rep. 116; Grymes v. Hone, 49 N.Y. 17, 10 Am. Rep. 313.) Inadequacy of consideration, without fraud, is no defense. (Dean v. Carruth, 108 Mass. 242; Giddings v. Giddings, 51 Vt. 227, 31 Am. Rep. 682.) Mr. Lawson says that a person is acquainted with the handwriting of another so as to admit of his testimony: 1. "When he has seen that person write, whether often or seldom, much or little, recently or long ago; 2. When he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person. 3. When, in the ordinary course of business, writings purporting to be written by that person have passed through his hands." (Lawson on Expert Testimony, 288; Redding v. Redding, 69 Vt. 500, 38 A. 230; 1 Wharton on Evidence, sec. 708; 1 Greenleaf on Evidence, sec. 577; Bradford v. People, 22 Colo. 157, 43 P. 1013; Salazar v. Taylor, 18 Colo. 538, 36 Am. St. Rep. 303, 33 P. 369; Jacob v. Watkins, 10 A.D. 475, 42 N.Y.S. 6; Sill v. Reese, 47 Cal, 344; Burdell v. Taylor, 89 Cal. 613, 26 P. 1094; Stone v. Moore (Tex. Civ. App.), 48 S.W. 1097.) The supreme court of the United States has said: "Mere papers, not otherwise competent, cannot be introduced for the purpose of enabling the jury to institute a comparison of handwriting, yet where other writings admitted or proved to be genuine are properly in evidence, for other purposes, the handwriting of such instruments may be compared by the jury with that of the instrument or signature in question." (Stokes v. United States, 157 U.S. 667, 15 S.Ct. 617; Hickory v. United States, 151 U.S. 303, 14 S.Ct. 334; Moore v. United States, 91 U.S. 271; Rogers v. Ritter, 12 Wall. (U.S.) 317; Williams v. Conger, 125 U.S. 414, 8 S.Ct. 933; United States v. McMillan, 29 F. 247; People v. Parker, 67 Mich. 222, 11 Am. St. Rep. 578, 34 N.W. 720; Randolph v. Loughrin, 48 N.Y. 459; Miles v. Loomis, 75 N.Y. 294, 31 Am. Rep. 470; Vinton v. Peck, 14 Mich. 293; Van Sickle v. People, 29 Mich. 261.)

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

This action is brought by the plaintiffs against the defendant, as the executor of the last will and testament of Mervin H. Gill, deceased, to recover from said estate the amount alleged to be due upon a certain promissory note alleged by plaintiffs to have been executed and delivered by said Gill in his lifetime to Belle Bane, a married woman, and one of the plaintiffs, for the sum of $ 4,500 and interest. Said note having been presented for allowance to the said executor, and by him rejected, this action is brought for the recovery of the same. The answer of defendant denies the execution and delivery of the note by the decedent, and also alleges that there was no consideration therefor. The case was tried by the district court for Canyon county, with a jury, upon the issues presented by the pleadings. Two questions are presented by the record: 1. Was the note sued upon in this action the note of Mervin H. Gill, deceased? 2. Was said note, if executed and delivered to plaintiffs, so executed and delivered without consideration?

Upon the first proposition a large number of witnesses testified upon both sides. The first witness presented by the plaintiff to establish the genuineness of the signature to the note is C. P. Bilderback, who testifies in substance as follows "I have resided at Emmett, Canyon county, Idaho for ten years, and engaged in the mercantile business most of the time, and resided about one mile from M. H. Gill, and was well acquainted with him. Have known him about twenty-five years. For the last few years he has been an invalid. I had business relations with him for six years that I was in business there. . . . The signature to that note, to the best of my knowledge and belief, is that of M. H. Gill. The writing in the body of that note is that of John McNish, a merchant in Emmett. . . . I think Mr. Gill became an invalid six or seven years ago He apparently lost the use of his legs, and could not walk. He was not confined to his house all the time. Think, though, that the last year or two he was confined to his house. I...