Cook v. Strother
| Decision Date | 08 June 1903 |
| Citation | 75 S.W. 175,100 Mo.App. 622 |
| Parties | MARION J. COOK, Plaintiff in Error, v. JOHN D. STROTHER, Administrator, etc., Defendant in Error |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.
Judgment affirmed.
John W Clements and Paxton & Rose for plaintiff in error.
(1) The court erred in permitting defendant to introduce a check signed by John W. Cook, the deceased brother, for comparison with the signature of Enoch Cook. Bank v. Hoffman, 74 Mo.App. 203, 208; R. S. 1899, sec. 4679. (2) The court erred in giving instruction number 2, asked by defendant this instruction making the note void if it was altered while in the possession of plaintiff, whether he consented to it or not, and even though such alteration might have been made by a party not authorized or contrary to plaintiff's wishes. Lubbering v. Kohlbrecher, 22 Mo. 596; McMurtry v. Sparks, 71 Mo.App. 126; Hord v. Taubman, 79 Mo. 101; Menne v. Newmeister, 25 Mo.App. 300; Medlin v. Platte Co., 8 Mo. 235; Koontz v Kaufman, 31 Mo.App. 397; Donahue v. Railroad, 83 Mo. 560.
J. Allen Prewitt for defendant in error.
(1) The court did not err in admitting the check signed by John W. Cook. The authorities submitted by plaintiff uphold defendant's contention rather than plaintiff's. Besides plaintiff saved no exception on the point now raised. He only objected to the form of question presented to his own witness. (2) The court did not err in giving instruction number 2 asked by defendant. R. S. 1899, secs. 746, 747; Girdner v. Gibbons, 91 Mo.App. 412; Kelley v. Thuey, 143 Mo. 422; Hord v. Taubman, 79 Mo. 102; Moore v. Hutchison, 69 Mo. 422; Paul v. Leeper, 72 S.W. 715; Bank v. Fricke, 75 Mo. 178; Haskell v. Champion, 30 Mo. 136; Frankenthal & Bro. v. Ins. Co., 76 Mo.App. 15; Mirrielees v. Railroad, 163 Mo. 486; Drug Co. v. Self, 77 Mo.App. 289; Guentley v. Staed, 77 Mo.App. 162, and cases cited.
This is an action on a promissory note alleged to have been executed by Enoch Cook in his lifetime. The defendant administrator prevailed in the trial court. The defense made was that the deceased never executed the note and that it had been altered after the signature while in plaintiff's possession.
The two chief errors noted in plaintiff's brief relate to the comparison of the admitted signature of a witness, James M. Cook, with the signature on the note. Under the statute (sec. 4679, R. S. 1899) it is not only proper to show in evidence, for comparison, some admitted signature of the party alleged to have executed the note, but you may also show for comparison, some admitted signature of the party (if any) who is accused of the forgery. Bank v. Hoffman, 74 Mo.App. 203. This, of course, does not authorize the introduction of signatures of a party who is not charged to be in any way connected with the forgery. The witness James M. Cook is not shown by the record to be connected with the note in such way as to justify the introduction of the signature for the purpose stated. But the evidence was received without objection and therefore is not a ground of error. There was an objection and exception, but the objection was specially put as to the "form" of the question asked, and not to the competency of the evidence. Such objection only goes to the form of the question and does not entitle the objector to afterwards, on appeal, complain of the substance. An objection of that kind justifies the trial court in assuming that the competency of the evidence, in matter of substance, was not disputed.
The other objection relates to defendant's instruction number two. The matter of complaint is that that instruction submitted the question of the alteration of the note while in plaintiff's possession and directed that if it was so altered, the finding...
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