Dinsmore v. Stimbert

• Decision Date: 05 April 1882
• Citation: 12 Neb. 433,11 N.W. 872
• Parties: DINSMORE v. STIMBERT.
• Court: Nebraska Supreme Court

12 Neb. 433

11 N.W. 872

DINSMORE

v.STIMBERT.

Supreme Court of Nebraska.

Filed April 5, 1882.

Error from Clay county.Hastings & McGintie and Stone & Stone, for plaintiff.

John D. Hayes, for defendant.

COBB, J.

The answer of the defendant in the court below is altogether indefinite and uncertain. He first alleges that he never signed the note, and that the signature thereto is not genuine. He then alleges that if he did sign the note, or the signature thereto is genuine, then that it was procured through the fraud and circumvention of either * * * or * * * or both of them, in some way or manner unknown to the defendant, in the transaction and negotiation by the defendant had with the said * * * and * * * in and about the appointment of the defendant as agent to sell a certain patent fence post, without any fault or negligence on the part of the defendant; that the only paper that he ever signed with the said parties, or either of them, was a contract represented by said * * * and * * * to have been a contract whereby said defendant was to be constituted the agent of said * * * and * * * for the sale of a patent fence post, and that when he signed said paper he believed the representations to be true, and relied upon the representations of the said * * * and * * * as being true, and was compelled to rely upon said representations because there was no person in the immediate vicinity upon whom he could call to read the same, etc.

The answer in Douglas v. Matting, 29 Iowa, 498, cited by plaintiff in error, is substantially the same as this, and that was held by the supreme court of that state to substantially admit the execution of the note. And such must be true of the pleading under consideration. The defendant in the court below must be held to know his own signature. If the signature to the note was not his, then it was simply a case of forgery, and all of his pleading and testimony in regard to the representations of Laird and Defendorf, his own inability to readily read English, etc., become immaterial.

We think the court below erred in submitting the question, “Did the defendant sign the note sued on?” for a special finding, and thereby placing prominently before the jury a question which, as we have seen, must be regarded as admitted by the answer. And we think it altogether possible that their general finding was controlled by this special one.

The court below, on the trial, instructed the jury as follows:

“(1) If you shall find from the evidence that the defendant signed the note sued on, and that Grimes and Dinsmore bought the note before due for a valuable consideration in the usual course of business, in good faith, and without any notice of any defence existing to said note, then you will find for the plaintiffs for the amount now due on the note according to its terms. (2) Unless you shall find from the evidence that the defendant, without fault on his part, was procured to sign said note, and that said defendant was unable to read said note, and did not understand the contents thereof, but under the false representations of the parties who took the note fully believed the paper signed to be of a different character and not a note, and that there was no consideration for said note,--I say, if you shall find from the evidence that the defendant signed the note, you may find for the defendant. (3) If you find that the defendant received no consideration therefor, and that the defendant signed the same upon a false and fraudulent representation of the parties who took the same, fully believing he was signing a paper of a different character,--that is, if you further find that the defendant, before signing said note, used the diligence and care that a man of ordinary care and prudence would have used under similar circumstances to ascertain its contents, and was without fault? (4) If the note was not signed by the defendant your verdict will be for the defendant.”

Except in one particular but little fault can be found with the substance of these instructions, and that they treat it as an open and prominent question whether the defendant did in fact sign the note. Yet we think that they are constructed in such a way that the jury might, and probably did, misunderstand their import and bearing. The true question was whether the...