Costello v. Crowell

• Decision Date: 07 September 1882
• Citation: 133 Mass. 352
• Parties: James J. Costello, executor, v. Horace S. Crowell, administrator
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

133 Mass. 352

James J. Costello, executor, v. Horace S. Crowell, administrator

Supreme Court of Massachusetts

September 7, 1882

Suffolk. Contract upon two promissory notes. The first note was payable to the order of James Costello, the plaintiff's testator, and purported to be signed by Thomas Corey, the defendant's intestate. The second note was payable to the order of John F. Costello, a nephew of Corey, who indorsed it to James Costello, and purported to be signed by Corey. The defence was that both notes were forgeries. At the trial in the Superior Court, before Gardner, J., the jury returned a verdict for the defendant on the first note, and a verdict for the plaintiff on the second note; and each party alleged exceptions, which appear in the opinion.

Exceptions overruled.

H. E Swasey & G. R. Swasey, for the plaintiff.

J. G Abbott, for the defendant.

W. Allen, J. Endicott & Devens, JJ., absent.

OPINION

W. Allen, J.

1. It does not appear that the court erred in excluding the testimony, offered by the defendant, of the cashier of one bank that Corey could have borrowed money at that bank, or the testimony of the cashier of another bank that its president had instructed him to let Corey have, on his account, whatever money he desired. The question on trial was, whether the signature of Corey to the note was genuine or forged. This evidence was offered to contradict the testimony of Costello, the payee of the note, that Corey was financially embarrassed, and had applied, by letter, to the witness for a loan of the money for which the note was given; which letter was in evidence. The fact that Corey might have borrowed money of two other persons would not, of itself, be competent to prove that he did not borrow of his nephew, nor that he was not financially embarrassed; but it was a circumstance which might have been so connected with other circumstances as to have become competent. It is upon the party objecting to its rejection to show that it was material. Fisher v. Plimpton, 97 Mass. 441.

2. The plaintiff put in evidence two letters, with proof, not by experts, that they were in the handwriting of Corey. The defendant called experts, who testified that, in their opinion, the letters were not in Corey's handwriting. The plaintiff was allowed to call an expert to testify that, in his opinion, the letters were in the handwriting of Corey. This was a matter within the discretion of the court.

3. The first exception taken by the plaintiff is to the admission of a check, with evidence that it was signed by Corey, as a standard of comparison. Before a specimen of handwriting can be admitted for this purpose, it should be shown by clear and undoubted testimony that it is genuine. Its genuineness must be found as a fact by the judge at the trial, before it can be submitted to the jury. This court can revise that finding, and can set it aside only if founded upon errors in law, or improper or insufficient evidence. There is no exception to any principle of law upon which the finding was made, and the evidence was sufficient to sustain it.

4. The testimony of the masters in chancery objected to was admitted for the sole purpose of showing the circumstances under which certain declarations of James Costello were made, and the authority of the magistrates. We think that the testimony that John F. Costello, the son of James, and the indorser to him of one of the notes under consideration, was the principal for whom James offered himself as bail, was competent for the former purpose; and it does not appear what the testimony as to the nature of the offence charged was, nor that the plaintiff was prejudiced by it.

5. It was competent for the defendant to prove that James Costello did not have the means to advance the money for which the plaintiff contended that the notes in suit were given. As one step in this proof, it was competent to show that he did not use for that purpose means that he was known to possess, to give effect to evidence that he did not possess other means. It does not appear that there was not such evidence, and...