Bank of Commerce of Louisville v. McCarty

• Decision Date: 29 May 1930
• Docket Number: 27211
• Citation: 231 N.W. 34,119 Neb. 795
• Parties: BANK OF COMMERCE OF LOUISVILLE, APPELLANT, v. TILLIE MCCARTY, APPELLEE
• Court: Nebraska Supreme Court

231 N.W. 34

119 Neb. 795

BANK OF COMMERCE OF LOUISVILLE, APPELLANT, v. TILLIE MCCARTY, APPELLEE

No. 27211

Supreme Court of Nebraska

May 29, 1930

APPEAL from the district court for Cass county: JAMES T. BEGLEY JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

A note given by a widow for the payment of a debt due from her deceased husband's estate, which estate is insolvent, is voidable in law without a new consideration; and such consideration will not be raised by an agreement on the part of the creditor that the note will be renewed from time to time after maturity.

The mere opinion of witnesses who testify alone from familiarity with a signature and from comparing genuine and disputed writing has less weight generally on the issue of forgery than expert opinions based on scientific skill and sound reasons.

The result of comparisons made by handwriting experts is a character of evidence sanctioned by statute and merits proper consideration on the issue of forgery in a civil action.

Testimony of handwriting experts that a promissory note offered in evidence is a forgery and does not bear the genuine signatures of the makers thereof, if based on sound reasons and circumstances supporting that theory, may be sufficient to overturn the testimony of witnesses that they saw the note executed.

A forged instrument may not, in absence of a new and adequate consideration, or of elements of estoppel, be ratified by the purported makers thereof so as to confer on the forger himself a right of action thereon.

As between original parties, and as against transferees who are not bona fide purchasers for value, a renewal note is open to all defenses which might have been made against the original note.

Evidence examined, and held sufficient to support the judgment.

Appeal from District Court, Cass County; Begley, Judge.

Action by the Bank of Commerce of Louisville against Tillie McCarty. From a judgment for defendant and an order denying a new trial, plaintiff appeals.

Affirmed.

Jesse L. Root and C. A. Rawls, for appellant.

W. R Patrick and D. O. Dwyer, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON and EBERLY, JJ., and LIGHTNER, District Judge.

OPINION

EBERLY, J.

Suit by plaintiff upon two causes of action consisting of two promissory notes each dated June 30, 1927, due "on demand," payable to plaintiff, and each bearing the signature of defendant as the sole maker thereof, one of which was for $ 5,000 and one for $ 1,000.

The issues presented by the record in this cause include: (1) Whether the defendant was induced to sign the instruments in suit by alleged fraudulent representations of the plaintiff; (2) whether the notes in suit were based upon adequate consideration; (3) whether the notes which plaintiff claims constituted the consideration for the notes in suit were forgeries; (4) and whether the defendant, who at all material times prior to March 12, 1926, was a married woman, ever charged her separate estate with the payment of any of the obligations to the bank.

There was a trial to a jury in the district court which resulted in a general verdict and finding for the defendant as to both causes of action. From a judgment entered thereon, and an order denying a new trial, plaintiff appeals.

The transaction under investigation here opens with the evidence on behalf of the plaintiff of a promissory note payable to the plaintiff bank or order, dated August 22, 1924. The original of this note was not produced, but by secondary evidence the plaintiff seeks to establish it as an instrument executed by Robert McCarty and Tillie McCarty which was carried on the records of the bank as note number 5640. The execution of this note is positively denied by the defendant. Plaintiff sought to introduce in evidence a purported copy of note number 5640, which is identified in the record as exhibit B. This copy had been prepared by the witness on the Friday or Saturday preceding the trial in the district court without having the original in his possession and without making a comparison therewith. On objection, this purported copy was excluded and this ruling of the trial court is challenged as prejudicially erroneous. Without any determination of the technical correctness of the ruling challenged, we are of the opinion that the plaintiff was in no manner prejudiced thereby. Exhibit B contained no words charging "the sole and separate property" of Tillie McCarty as a feme covert, save and except: "I, Tillie McCarty, do hereby charge my personal estate with the payment of this note." (Italics ours.) At the time of entering into this obligation, according to the evidence of the plaintiff, the sole and separate estate of the defendant consisted of real estate only.

"'Personal estate,' while a term of wide signification, is not ambiguous or uncertain, its common and legal meaning being entirely clear. In its ordinary legal signification it is understood to embrace every species of property not of a freehold nature, including intangible personal property as well as tangible. It may appear, however, from the surrounding circumstances that the term is used in a more restricted sense, as in the sense of personal effects, or tangible personal property." 48 C. J. 1046, citing Maxwell v. Maxwell, 106 Neb. 689, 184 N.W. 227; Stearns v. Stearns, 103 Conn. 213, 130 A. 112.

It may be conceded that the wife may pledge certain of her separate estate to the payment of this indebtedness of her husband (for which she is surety), and to the extent of the proceeds of such property her separate estate will be bound. But the right of the creditors to recover against her separate estate extends no further the limitations imposed by the terms of her contract. Grand Island Banking Co. v. Wright, 53 Neb. 574, 74 N.W. 82; Northwall Co. v. Osgood, 80 Neb. 764, 115 N.W. 308. In the instant case, the terms of exhibit B, above quoted, apparently limit the payee to recover against the "personal" estate of the wife only. And, though carrying the burden of proof, the plaintiff, so far as disclosed by this record, wholly failed to establish that the defendant possessed any personal estate at the time that this engagement was assumed by her, in view of the rule that the contract of a married woman as surety can only be enforced against the separate estate she possessed at the date of the contract referred to or described therein. Kocher v. Cornell, 59 Neb. 315, 80 N.W. 911; Giltner State Bank v. Talich, 115 Neb. 236, 212 N.W. 536. It would seem that the ruling of the trial judge in excluding exhibit B, if erroneous, would be error without prejudice. Certainly this conclusion is inescapable in view of the fact that oral evidence as to the exact terms of note 5640 was subsequently received, which was indeed more favorable to the plaintiff's contention than the terms of the rejected copy.

Proceeding now to the merits of the case, it may be said that the evidence in the record is conflicting. It is not claimed on behalf of the bank that prior to the execution of the notes in suit the defendant was obligated to the bank in any other capacity, save as surety on her husband's obligations. For this purpose it is insisted on the part of the bank that the defendant expressly bound her separate estate. The testimony on behalf of the bank tends to establish that about August 22, 1924, the defendant and her husband executed and delivered to the bank a joint note number 5640 in the sum of $ 5,000 which, according to the oral evidence introduced on behalf of the plaintiff, contained a clause binding the separate estate of the wife; that subsequently note number 6367 was taken by the bank in renewal of 5640. This note, number 6367, bore date August 22, 1925, was for the sum of $ 5,000, due "on demand," and purported to bear signatures of "Robt. McCarty" and "Tillie McCarty," his wife. Robert McCarty died March 12, 1926. Subsequently, on July 6, 1926, a claim was filed in behalf of the bank in the probate court and in the estate of Robert McCarty based upon the promissory note number 6367, and also one of $ 200 and one of $ 300, the latter two notes being executed by Robert McCarty only. These claims were duly allowed. The estate of Robert McCarty proved insolvent, and on May 21, 1927, a dividend amounting to $ 242.42 was received by the bank, "being the first and final dividend." After this sum had been received by the bank it secured from the defendant the two notes now in suit, which are renewals of note number 6367 and the two notes aggregating $ 500 and interest, less the dividend received and which had been allowed as a claim against the estate of Robert McCarty. So far as disclosed by the probate records before us, Mrs. McCarty received nothing from her husband's estate, save and except the widow's allowance of $ 1,200 and certain uncollected accounts of doubtful value "in lieu of deceased's exemptions." We do not understand that the allowance of this claim by the county court was in legal effect to charge the defendant with a personal liability for its payment. Indeed, very respectable authority has determined that "A note given by a widow for the payment of a debt due from her deceased husband's estate, which estate is insolvent, is void in law without a new consideration; and such consideration will not be raised by an agreement on the part of the creditor that the note will be renewed from time to time after maturity." Paxson v. Nields, 137 Pa. 385, 20 A. 1016. It would seem beyond question that the defendant's liability on the notes in suit must be sustained, if at all, upon her own acts in assuming her engagements.

Before entering into a discussion of the conflicting evidence, it may be noted that it is conceded by all parties ...