Cohen v. Teller

• Decision Date: 01 March 1880
• Parties: Cohen <I>versus</I> Teller.
• Court: Pennsylvania Supreme Court

Page 123

93 Pa. 123

Cohen versus Teller.

Supreme Court of Pennsylvania.

February 2, 1880.

March 1, 1880.

February 2d 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1877, No. 51.

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Francis E. Brewster and F. Carroll Brewster, for plaintiff in error.—It is submitted, that by inconsistent rulings, while the plaintiff was allowed to prove what the broker told him, he was not allowed to support this by the testimony of the broker. He thus stood before the jury upon this important branch of the case uncorroborated by the other party to the conversation. The injustice of this more strikingly appears when it is remembered that upon this branch of the case the defendant attempted to contradict Cansler. The plaintiff contends that there was error in ruling out his offer to show that David Kohn had repeated to plaintiff the defendant's admissions. Unless these admissions were the operating cause with the plaintiff in the purchase of the note, there was no room in the case for the doctrine of estoppel. If it were competent to prove by the plaintiff that David Kohn told him this, why was it not competent to show the same thing by David Kohn? For these reasons it is submitted that there was error in striking out of Cansler's testimony the statement that he repeated to David Kohn the defendant's admissions as to the note in suit. This was part of the res gestæ.

The defendant, according to the theory of his defence, knew for months that his name was being forged to negotiable paper. He made no effort during all this time to acquaint himself with the true state of affairs, and when at length large amounts of this paper were brought to his immediate notice, he commits himself in some cases, in others he eludes inquiry by evasive answers, and in all he quietly stands by and allows innocent parties to buy this forged paper. He is estopped by his own acts: Pickard v. Sears, 6 Ad. & E. 469; Freeman v. Cooke, 2 Exch. 654; McMahon v. McMahan, 1 Harris 380; Waters's Appeal, 11 Casey 523; Reel v. Elder, 12 P. F. Smith 308; Smith v. McNeal, 18 Id. 164; Niven v. Belknap, 2 Johns. 589; Gregg v. Von Phul, 1 Wall. 280; Chapman v. Chapman, 9 P. F. Smith 218; Meason v. Kaine, 17 Id. 132. The silence of a party to whom a note purporting to be signed by him was shown, with a request to pay it, is competent evidence that his signature is genuine, or if not genuine, of his assent to be bound by it: Corser v. Paul, 41 N. H. 24; Greenfield Bank v. Crafts, 2 Allen 269. See Starkie on Evidence, 9th edition (note), star page 51; Casco Bank v. Keene, 53 Maine 103; Hefner v. Dawson, 63 Ill. 403; 14 American Rep. 123. The jury were instructed by the court to look at the defendant's conduct "tenderly and mercifully." Such language from the court was undoubtedly calculated to enlist the sympathies of the jury in favor of the defendant and control its deliberations adversely to plaintiff's interest: Mohney v. Evans, 1 P. F. Smith 80; Burke v. Maxwell, 31 Id. 153. The court, in stating their opinion, based upon a confession of handwriting, withdrew from the jury the duty which belonged appropriately to them, as laid down in Bank v. Whitehill, 10 S. & R. 110; Lodge v. Phipher, 11 Id. 334; Baker v. Haines, 6 Whart. 284; Travis v. Brown, 7 Wright 9; Haycock v. Greup, 7 P. F. Smith 438; Aumick v. Mitchell, 1 Norris 211.

Samuel Dickson, John C. Bullitt and Moses A. Dropsie, for defendant in error.—The part of Cansler's testimony that was stricken out was inadmissible, because it was a communication made in the absence of the defendant, who was to be affected by it, and the witness could not testify by wholesale but should have repeated the language used, so that the jury could judge whether he had correctly repeated it. The striking out of evidence is a matter for the court only, as the jury must be instructed to disregard incompetent testimony, if once admitted: Yeager v. Weaver, 14 P. F. Smith 425. The objection to the letters was that they were copies. A copy is a transcript, imitation, or representation of the original, and in a loose sense the impression taken from types is said to be a copy, but strictly speaking, an impression taken from one's writing is not a copy, as it is neither a transcript, imitation or representation, but is the same as or identical with the original, being produced from it.

The court correctly enunciated the law of estoppel as enunciated by Bigelow on Estoppel 485, and in Commonwealth v. Moltz, 10 Barr 527. The defendant could not be estopped by anything said to Cansler unless notice was in some way brought to him that Cansler was about to act upon the faith of his declaration: Bigelow 485, 491; Hackett v. Callender, 32 Vt. 97; Morgan v. Spangler, 14 Ohio 102; Danforth v. Adams, 29 Conn. 107; Taylor v. Ely, 25 Id. 250. The court ruled the law against the defendant, and the plaintiff failed to prove that the defendant ever saw or spoke to Cansler. In such a state of evidence the only maxim necessary is cadit quæstio.

Mr. Justice PAXSON delivered the opinion of the court, March 1st 1880.

There are forty-three assignments of error in this case. I have examined them all patiently and laboriously. To discuss them in detail would extend this opinion to an unreasonable length. Nor is it necessary. While the record abounds in exceptions, many of the errors assigned have been cured by the subsequent rulings of the court; evidence improperly excluded having been afterwards admitted, and evidence improperly admitted subsequently stricken out.

The suit below was an action of assumpsit, brought by August Cohen, the plaintiff, against Solomon Teller, the defendant, as endorser of a promissory note made by the firm of M. Kuhn & Co.; one of the makers was a son-in-law of the defendant. The latter alleged that his signature as...