Cravens v. Gillilan

• Court: Missouri Supreme Court
• Writing for the Court: SHERWOOD
• Citation: Cravens v. Gillilan, 63 Mo. 28 (Mo. 1876)
• Decision Date: 31 May 1876
• Parties: JOHN CRAVENS, Respondent, v. NATHAN GILLILAN, Appellant.

63 Mo. 28

JOHN CRAVENS, Respondent,

v.NATHAN GILLILAN, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Daviess Circuit Court.

Shanklin, Low & McDougal, for Appellant.

I. A forgery cannot be ratified. (Sto. Ag., § 251 a;Ferry v. Taylor, 33 Mo. 323; Brook v. Hook, L. R., 6 Exch. 88; Collins v. Swan, 7 Robt. [N. Y.], 623; Williams v. Bagley, L. R. H. L. 200; See note to McHugh v. County of Schuylkill, 5 Am. R. 447); at least not without a new consideration. (McHugh v. County of Schuylkill, 67 Penn. [St.] 391; Negly v. Lindsay, 67 Penn. [St.], 217; Decuir v. Lejeune, 15 La. Ann. 569.)

II. The remarks of the defendant did not amount to a ratification of the note. (Lancaster v. Baltzell, 7 Gill. & J. 472; Hull v. Huse, 10 Mass., 39.) The burden of proof was upon plaintiff, not only to establish the ratification, but to show that Nathan at the time had full knowledge that his name had been signed without his authority by Robert. (Clark v. Lyon Co., 7 Nevda, 75; Sto. Ag., §§ 324, 243; 1 Pars. N. & B. 101; Nixon v. Palmer, 8 N. Y. 398; Fletcher v. Dysart, 9 B. Mon. 413; Whitford v. Monroe, 17 Md. 135; Norton v. Ball, 43 Mo. 113; Moore v. Patterson, 28 Penn. [St.], 505.)

M. Oliver, with Hicklin & Leopold, for Respondent, cited Sto. Ag., § 251, note 1, and authorities cited; also §§ 252, 253; 1 Pars. Cont., [6th Ed.,] 52, 53 and notes; 1 Am. Lead. Cases, 589-593; Culver v. Ashley, 29 Mo. 387-389; 2 Gr. Ev., § 66.

SHERWOOD, Judge, delivered the opinion of the court.

Action on a note purporting to be executed to plaintiff by Robert L. Gillilan, Nathan Gillilan and Mary J. Clendennen. The suit was instituted against Robert L. Gillilan and the administrators of Mary J. Clendennen, but was dismissed as to them, and proceeded with against Nathan Gillilan alone. Nathan Gillilan denied the note under oath. The case was tried before the court without a jury. The evidence, as set out in the bill of exceptions, was as follows:

John Cravens, the plaintiff, testified: “I wrote the body of the note sued on, myself. Robert L. Gillilan signed all the names to it. Nathan Gillilan was not present. About a year ago I met the defendant here in Gallatin, spoke to him about the note in suit, and asked him if they had not better settle it. Told him whose names were on the note. He asked to see the note; told him it was in bank. We started toward bank to see it, when defendant said, ‘I will go and see Robert L. Gillilan about the note.’ He left me, and when he returned in a short time, he said, ‘It is Robert L.'s debt; it is all right; if you want the money we will get it for you; there is no necessity of having it probated against Mrs. Clendennen's estate.’ In August last, I started to go to defendant's home to see about this note. On the way there I met defendant coming to town. This was after Robert L.'s arrest. Defendant asked me if I was going to his home; I told him I was; he then suggested that he would see me in town, and we returned together. Nothing was said about the note at the time. Some time after I got back to town, defendant came to my son's drug store and asked to see the note. I showed it to him; he looked at it and said it was a forgery; that he had never signed the note. This was the first time he had ever seen the note.”

Cross-examination. When Robert Gillilan obtained the money for which the note in suit was given he said it was for Mrs. Mary J. Clendennen. Mrs. Clendennen was dead when I had the conversation with defendant, first referred to in my testimony, and Robert L. Gillilan was one of the executors of her will. I spoke to defendant to see if they wished to take up the note, and have it probated against Mrs. Clendennen's estate. When defendant returned, after seeing Robert L. Gillilan, he said, “Its Bob L.'s note; there's no necessity for having it probated against Mrs. Clendennen's estate; it is all right, if you want the money we will pay it.”

Maro Thomas testified: “About the last June term of the Circuit Court plaintiff and I were in the drug store together, when defendant came to the door and spoke to plaintiff saying, “Dr. Cravens, that note is all right; it was Robert L. Gillilan's debt.”

Plaintiff being re-called stated that the conversation mentioned by Maro Thomas was the same conversation referred to in his testimony. Plaintiff here offered the note in evidence and the defendant objected to its introduction for the reasons; that the execution of the note was not sufficiently established; that the conversations of defendant in evidence did not amount to a ratification of the note; that the note was a forgery, as to defendant and Mrs. Clendennen; that it was not shown that defendant, at the time of such conversations, knew all the material circumstances under which said note had been executed; that Robert L. Gillilan in signing said note did not assume to act as the agent of Nathan Gillilan; that the act of Robert L. Gillilan, in signing defendant's name to the note in suit did not bind defendant, because said Robert L. being an interested party, could not bind the defendant by signing his name as guarantor.

These objections were overruled and the note admitted in evidence, and the defendant duly excepted.

The defendant Nathan Gillilan testified as follows: “At last June Term of the Circuit Court I met plaintiff. He said to me, ‘Hadn't you better fix up that note I have against Mrs. Mary J. Clendennen, so as to have it allowed against her estate?’ I told him I knew nothing about it; that Robert L. Gillilan was executor of Mrs. Clendennen's will, and that I would see him, Robert L., about it. I went at once and saw Robert L. He told me the note was all right; that it was his, Robert L.'s debt; and that if Dr. Cravens wanted the money he would pay it. I then went to the drug store and told plaintiff that the note was all right; that it was Robert L.'s debt. I did not then know that my name was on the note. I never authorized Robert L. Gillilan to sign my name to the note in suit. The money was not gotten for my use. I never knew that my name was on the note in suit until plaintiff showed me the note, here in town, after the arrest of Robert L. Gillilan. Had heard it talked of here in town after his arrest, and after we got into town, the day I met plaintiff going to my house, I asked him to show me...