Behles v. Duffy

• Decision Date: 10 October 1916
• Citation: 35 N.D. 181,159 N.W. 838
• Parties: BEHLES v. DUFFY.
• Court: North Dakota Supreme Court

35 N.D. 181

159 N.W. 838

BEHLES

v.DUFFY.

Supreme Court of North Dakota.

Oct. 10, 1916.

Syllabus by the Court.

Action to recover on an alleged promissory note for $2,500 of Mary Duffy, which defendant claims she never executed, and to be a forgery. Held, the evidence is sufficient to sustain the finding of the trial court that the instrument is not the note of Mary Duffy, but was written in over her signature.

No presumption of law applies that, from plaintiff's production of the note in complete form with her signature underneath it, it was complete, and such when delivered, as against the inferences from the proof.

There is no presumption of law that she delivered the note in complete form or at all under the proof.

All inferences from the circumstances proven, including the alteration apparent upon the face of the instrument when examined under a microscope, are of fact and for the determination of the jury as issues of fact.

Appeal from District Court, McLean County; Nuessle, Judge.

Action by J. J. Behles against Maurice Duffy, as administrator of the estate of Mary Duffy, deceased. From a judgment for defendant, plaintiff appeals. Affirmed.H. F. O'Hare, of Bismarck, for appellant. J. A. Hyland, of Bismarck, and R. L. Fraser, of Garrison, for respondent.

GOSS, J.

This is an action against the administrator, Maurice Duffy, to recover of the estate of Mary Duffy $2,500 and interest upon an alleged promissory note given by her to one Rev. Wm. H. Sheran, and purchased by plaintiff from Sheran after its maturity. The answer denies the execution and delivery of the note, and alleges:

“That the said Sheran fraudulently executed said note in his favor, and that if the signature of Mary Duffy is signed to said note, the same was obtained by fraud and not otherwise.”

The trial court adjudged the note invalid because a forgery. Sufficiency of the evidence to sustain this finding is challenged. If there is competent evidence to sustain that finding, the case is concluded against appellant.

[1] The note was written upon a portion of a blank sheet of narrow white paper. It is almost square. The body of the note reads:

Plentywood

Montana

Aug. -1st 1909

One year from date, for value received, I promise to pay the Rev. Wm. H. Sheran or order the sum of twenty five hundred dollars ($2500.00) with interest at the rate of seven percent before and after maturity.

Mary Duffy.

It is admitted that the entire note above the words “Mary Duffy,” is in the handwriting of Sheran; also that the words, “Mary Duffy” are in her handwriting and it is her genuine signature. There are two folds lengthwise across the paper and through the handwriting. The last word “maturity” is written as the last line, and is crowded in above the first word of the signature, the upper part of the letter “M” of the word “Mary” of the signature crosses the word “maturity,” and the word “seven” in the line immediately above the word “maturity.” The signature is with a different and lighter ink than that in which the rest of the note is written. Across the back of the note, also admittedly in the handwritingof Sheran, appearing as an indorsement thereon, are the words: “One year's extension granted. Due Aug. 1, 1911. To be paid at Farmers Bank, Garrison, N. Dak.”-in apparently the same ink with which the body of the note is written and underneath this indorsement is a second indorsement in different ink, but also in the handwriting of Sheran, “One year's interest due on this note August 1st 1911,” and underneath is still another indorsement, “Pay to the order of J. J. Behles, without recourse,” in different handwriting, followed by the genuine signature and indorsement of “Rev. Wm. H. Sheran.”

Mary Duffy died in Iowa in 1911, at the home of her sister Mrs. Ella Fogerty. This note was presented for allowance November 29, 1911, to Maurice Duffy, the administrator for the estate in probate court in Livingston county, Ill., by Sheran as a claim against the estate of Mary Duffy. Its payment was refused by the administrator, under the claim that the note was a forgery. That court set a date for hearing on the issue so joined, whereupon Sheran asked withdrawal of the claim without prejudice. This the administrator opposed, but withdrawal was allowed. Sheran then presented it as a claim against her estate, to defendant administrator in ancillary administration, in McLean county, N. D., where she owned land. Sheran does not testify. He has left this country, and is in Oxford, England.

Mr. Marshall D. Ewell, author of Ewell's Medical Jurisprudence and an expert of national reputation in handwriting and kindred subjects, after an examination of the note under a microscope, has testified that the body of the note was written after the words “Mary Duffy” had been affixed to the paper upon which the note is written. He has detailed his reasons, that where the words in the body of the note are written across the portion of the signature, the writing carries through that of the signature, showing that the signature was then dry and was made first, and these words of the body of the note written over it. An examination under the microscope verifies this statement and the further one that certain portions of the signature were written across a fold in the paper after the paper had been folded, broadening the lines. The position of the signature with reference to the rest of the note and that the body of the note seems crowded in above it in economizing space is also significant. The paper appears to be a cut-off portion of the sheet of notepaper, as is evident from the margin in which an irregularity appears, caused by cutting with a sharp instrument from the balance of the sheet.

There is also in evidence the fact that about the time the note bears date Mary Duffy was not in need of money, but instead had means. The plaintiff, a banker at Garrison, N. D., testifies that:

“She had notes with us for collection, and she had drafts and cashiers checks against our bank, and at other times she had money in and on time certificates, interest-bearing time certificates. She probably had for six months or a year, but not all the time.”

It is proven that Sheran was hard up financially during the period from April, 1909, until August 12, 1909, after the date of the note. In July, 1911, in Montana, Ella Fogerty found four or five of Sheran's own letters in his handwriting in a trunk belonging to Mary Duffy at her home. This was after her death. In a letter of April 24, 1909, Sheran states, “I am sorely in need of an immediate payment” of some money he claimed due. Again on May 30, 1909, he wrote Mary Duffy on a business deal, from Plentywood, Mont., stating “I have only $250, and I am afraid it will not be enough.” On August 12, 1909, two weeks after the date of the note, he wrote to Mary Duffy:

“I decided to make a call upon my brother with the view to secure from him part payment at least of the note I hold against him. It may be necessary to visit St. Paul and my old home at Waseca, in order to get the required funds to live up there and be in a position to improve my claim. My idea is to have enough in hand to get a team and a cow. Hoping you will not...