Corby v. Weddle

• Decision Date: 31 August 1874
• Citation: 57 Mo. 452
• Court: Missouri Supreme Court
• Parties: AMANDA CORBY, EX'RX, &C., Plaintiff in Error v. JOEL WEDDLE, Defendant in Error.

57 Mo. 452

AMANDA CORBY, EX'RX, &C., Plaintiff in Error

v.JOEL WEDDLE, Defendant in Error.

Supreme Court of Missouri.

August Term, 1874.

Error to Buchanan Circuit Court.

B. R. Vineyard, for Plaintiff in Error.

I. Plaintiff's first instruction ought to have been given, and defendant's second instruction ought to have been refused. (McDonald vs. Muscatine Nat. Bk., 27 Iowa, 319; Douglas vs. Matting, 29 Iowa, 498; Taylor vs. Atchinson, 54 Ill., 196; Putnam vs. Sullivan, 4 Mass., 45; Comm. vs. Sankey, 22 Penn. St., 390; Phelan vs. Moss, 67 Penn. St., 59; Chapman vs. Rose, 9 Alb. Law Jour., 339.) In the case at bar, unlike that of Ewart vs. Briggs, there is no finding by the jury that defendant was free from negligence.

Chandler & Sherman, for Defendant in Error, relied on Briggs vs. Ewart, 51 Mo., 250.

VORIES, Judge, delivered the opinion of the conrt.

This action was brought in the DeKalb Circuit Court and afterwards brought to the Buchanan Circuit Court by change of venue.

The action was brought to recover the amount of a promissory note charged to have been executed by the defendant to one S. M. Glasgow or order, for the payment of the sum of three hundred dollars, dated the first day of December, 1868, and payable one year after date.

It is charged in the petition that the note was on the 10th day of December, 1868, for value, assigned and transferred to plaintiff's testator by the payee thereof; and that at the maturing of the note, payment was demanded and refused, etc.

The defendant by his answer, fully denies the execution of the note, or that he ever thereby by himself or any one authorized by him to do so, promised to pay said Glasgow the sum of money therein stated; and denies all other allegations in the petition in reference to the execution or transfer to plaintiff's testator of the note. This answer was verified by the affidavit of the defendant.

The case was tried by the court without the intervention of a jury.

At the trial one Thomas Culligan was introduced as a witness on the part of the plaintiff, and testified that during the whole of the year 1869, he was the agent of John Corby, who has since died, and who was then doing a banking business in the city of St. Joseph; that in the month of April, 1869, one A. M. Glasgow came into the office and offered to sell the note sued on; that witness examined the note and found that the signature attached thereto was that of the defendant, whose handwriting witness was acquainted with; that the note was a printed note with the blanks for the amount, the date and the time when due, filled up in writing; that witness, after examining the note as the agent of Mr. Corby, purchased the same of Glasgow and paid a valuable consideration therefor; that at the time of the purchase of the note witness knew nothing of any defect in the note or its consideration, but believed that it was regular and right; that Glasgow was a stranger to witness, and he only knew his name to be Glasgow from the fact that he said that was his name; that in the month of May after the purchase of the note, defendant with another man came into the office of witness, and while they were there, witness told defendant that he had a note against him. Defendant replied that he reckoned not. Witness told him that he had and produced the note and showed it to defendant, at his request. Defendant examined it and said he thought it was his signature, but that he had received no consideration for the same. He said something about its being for a patent hay fork which he never got. The witness further stated that he was not acquainted with the man who came into the office with defendant, but that he was in the office during the conversation above referred to; that witness was well acquainted with the handwriting of defendant and that the signature to the note was in his handwriting.

The plaintiff then introduced witnesses who were experts, and offered to prove by each of them, that the handwriting of the defendant in his signature to his sworn answer in this case, was the same as that signed to the note sued on. The defendant objected to this evidence or to the introduction of such evidence. The objection was sustained and the evidence excluded, and the plaintiff excepted.

The plaintiff then offered and read in evidence the note sued on, without objection, which reads as follows:

“DeKalb County, Mo., Dec. 1st, 1868.

One year after date, I promise to pay to the order of S. M. Glasgow three hundred dollars, for value received, without defalcation or discount, with interest.”

Signed

“Joel Weddle.”

This note purports, by indorsement on the back thereof, to be assigned by Glasgow to John Corby for value.

The foregoing being all of the evidence given or offered on the part of the plaintiff, the defendant on his part, by his attorney, offered and read in evidence the depositions of himself, one N. B. Mayburgh and John W. Fowler; which depositions tended to prove the following state of facts:

The defendant testifies that the note sued on was first shown to him by witness Culligan at his office in St. Joseph; that that was the first time he ever saw the note; that he and Mayburgh went to Culligan's office together, he went to introduce Mayburgh; that while there Culligan told him that he had a note against him; that he told Culligan that he reckoned not, as he had not given any note to anybody and had no note out in the world that he knew of; that he asked to see the note, which was shown to him, and that after seeing the note and hearing it read, he told Culligan that he had never given any such note in his life; that he knew nothing about Glasgow, except that a man calling himself Glasgow some months before that time had come to his house and pretended to be an agent for a patent hay fork, and wanted to make him agent to sell the forks in DeKalb County; that he agreed to become an agent, if he would send the forks as he offered to do; that he signed a paper to make him an agent to sell the forks; that Glasgow told him that the papers he signed were agent papers, to give him power to sell the forks; that he signed no other papers than the agent papers; that he did not, at that time or at any time, give Glasgow or any one else the note sued on or any other note; that he never saw Glasgow before or since the time spoken of and had never received one cent of money or property for the consideration of the pretended note; that he signed no paper and intended at the time to sign no paper except such as would constitute him an agent to sell forks, which were to be sold at $16 each, half of which he was to have for his agency; that he received no forks and sold none.

Defendant stated on cross-examination, that he could read some writing but was a poor scribe; could read print and writing a little; that one Fowler was present at his house during the whole of the conversations and transactions spoken of with Glasgow; that he made no contract to purchase forks or to purchase the patent right for any territory, and did not promise to pay him any thing for either the forks or any thing else. He was to receive the forks free and sell only as agent. He could not tell the size of the papers signed. The two papers signed were printed in part and left with Fowler. Did not know whether Glasgow took any paper signed by him or not. Defendant also in his testimony denied that he had told Culligan that the signature to the note was his, but said that the name looked like his handwriting, but that he had never intended to sign a note.

The evidence of Mayburgh substantially corroborates the evidence of the defendant as to what took place in Culligan's office at the time of the conversation had there.

Witness Fowler testified that he was present at the time when the agreement was made with Glasgow, testified to by Weddle; that he lived in the same house with defendant; that at the time spoken of, Glasgow, or a man calling himself by that name, with another man called at the house of Weddle. They wanted to make Weddle an agent to sell hay...