Coleman v. Adair

• Decision Date: 04 April 1898
• Citation: 75 Miss. 660,23 So. 369
• Parties: T. R. COLEMAN, ADM'R, v. W. T. ADAIR
• Court: Mississippi Supreme Court

23 So. 369

75 Miss. 660

T. R. COLEMAN, ADM'R, v. W. T. ADAIR

Supreme Court of Mississippi

April 4, 1898

March 1898

FROM the circuit court of Montgomery county HON. W. F. STEVENS Judge.

This was a suit by appellee, Adair, against the appellant Coleman, as administrator of the estate of John H. Kent deceased. The declaration contained a count upon a note for $ 1, 000, executed by the intestate, Kent, and also a count seeking a recovery of a like sum of money averred to have been lent by appellee to the intestate, at the date of the note, and an implied promise to repay the same. The pleas to the count on the note were non assumpsit, non est factum and want of consideration. To the demand for money lent, the defense was a general traverse of the facts averred in the declaration. The evidence showed that Kent, the intestate, at the date of the note was an old and infirm man, and that he died in eleven days thereafter. There was evidence to the effect that Kent, who was sick the day before the date of the note and on the day of its date, never left the dwelling house of his son-in-law [appellant] after the day on which the note is dated until his death, and the appellant, who took immediate control of his effects, never found among them any money save thirty dollars, and never could find or account for the $ 1, 000 for which it was claimed the note was executed, and which appellee claimed to have loaned him on the day the note was executed. Several witnesses, experts in handwriting, testified, and most of them gave evidence to the effect that the signature to the note was not in Kent's handwriting. A number of signatures of Kent were introduced in evidence, which were proved or admitted to be genuine.

The third, fifth and sixth instructions for the plaintiff below [appellee] commented on by the supreme court, were as follows, viz.:

"3. Although it may appear, from the evidence, that the defendant has been unable to account for the $ 1, 000 sued for in this action, or to show what disposition John H. Kent, the deceased, made of the same, it does not follow, from this fact, that the said Kent did not get the money from the plaintiff, and if they believe, from the evidence, that said Kent did get the money from plaintiff and execute the note sued on for same, they will find for plaintiff."

"5. The court instructs the jury that, while the opinion of an expert is competent to go to the jury on an issue involving the genuineness of a written instrument, yet such evidence is intrinsically weak, and ought to be received and weighed by the jury with great caution; and they should give it such weight only as they may think it is justly entitled to receive in view of all the evidence in the case."

"6. The court instructs the jury that they are authorized to compare the handwriting of John H. Kent, deceased, with any of the checks and other papers which have been introduced and proven as signed by deceased with the signature to the note here sued on, and to determine for themselves, from comparison, whether the signature to the note here sued on is similar to the signature to the checks and other papers which are proven to be genuine, and judge for themselves whether the signature to the note is genuine or not; and this is true, although an expert has testified that the signature to the note is not exactly like the signature to the checks and other papers."

Reversed.

Somerville & McLean, for appellant.

The third instruction for the plaintiff below is erroneous in assuming that the $ 1, 000 sued for was a genuine, and not a fictitious, sum of money. It is also vicious in that it may have led the jury to believe that defendant in court below was under obligation to account for the disposition of the money. It leaves the implication that Kent's administrator was under obligation to account for the $ 1, 000.

Instruction No. 5 for plaintiff below is clearly erroneous in several particulars. In the first place, it is upon the weight of evidence, and is directly forbidden by § 732, code 1892. Railway C. v. Whitehead, 71 Miss. 451; Thompson v. State, 73 Miss. 584, 587; Underhill on Evidence, sec. 190.

The sixth instruction for plaintiff below is erroneous. It is an appeal to the...