Dow's Ex'r v. Spenny's Ex'r

• Citation: 29 Mo. 386
• Parties: DOW'S EXECUTOR, Plaintiff in Error, v. SPENNY'S EXECUTOR et al., Defendants in Error.
• Decision Date: 31 January 1860
• Court: Missouri Supreme Court

29 Mo. 386

DOW'S EXECUTOR, Plaintiff in Error,

v.SPENNY'S EXECUTOR et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1860.

1. In the execution of a promissory note a person may adopt and ratify the signing of his name by another.

2. In a suit on a promissory note in which the defendant sets up as a defence

that his name was forged by one of the joint makers, the defendant can not show, in support of his defence, that the alleged forger was a fine penman and had great skill in imitating the handwriting of others, so as to deceive even the person whose name he forged; nor can it be shown that such person had committed other forgeries.

3. Nor would it be competent for the plaintiff in such case to introduce in evidence papers known to be in the handwriting of the defendant in order that the jury might compare the signature upon the paper with that upon the note sued on.

Error to Cooper Circuit Court.

Douglass & Hayden, for plaintiff in error.

I. The court erred in refusing the instructions asked by plaintiff. The liability of the defendant is placed in these instructions upon two grounds: 1st, ratification or adoption of the act of Norris in signing his name to the note; 2d, fraud committed by Spenny in inducing the plaintiff to believe that his signature was genuine, whereby she was misled to her prejudice. There was evidence showing a ratification or adoption. (See 1 Am. Lea. Cas. 572-4; 7 Humph. 224; Story on Ag. § 160, 253-7; 17 Mass. 1, 33; 4 Esp. 226; Greenl. Ev. § 196.) Spenny misled plaintiff to her prejudice. (25 Mo. 386; 24 Mo. 223; 22 Mo. 85; 1 Smith L. C. 177; 1 Sto Eq. § 384-7.) He is estopped to deny the genuineness of his signature, or to set up the defence of forgery. (See 2 Smith L. C. 531; Sto. Eq. 385; 1 Greenl. Ev. §27, 207; 19 Mo. 204.) The question of fraud and ratification ought to have been submitted to the jury. The instructions given to the jury misled them. The statute of frauds has nothing to do with the case. (14 Mo. 482; 16 Mo. 273.) The court committed error in permitting defendants to introduce as evidence the fact that Norris was “a skillful penman; that he could imitate almost exactly the signatures of others, and was capable of committing forgery so well that the person whose name was forged would be deceived by it.” Also in refusing to permit plaintiff to show that the signatures of Brent and Keyser, sureties on said note, were genuine. Also in refusing to permit plaintiff to exhibit to the jury the paper with the genuine signature of defendant Cope. (1 Greenl. Ev. § 581; 14 Mo. 166.)

Adams, Stephens & Vest, for defendants in error.

I. The refused instructions asked by the plaintiff were based upon the erroneous assumption of an estoppel in pais, when there was nothing in the case to warrant such a conclusion. To constitute such an estoppel, there must be, first, an admission inconsistent with the evidence proposed to be given on the claim offered to be set up; second, an action by the other party upon such admission; third, an injury to him by allowing such admission to be disproved. (See Dorrell v. Odell, 3 Hill, 219; Taylor & Mason v. Zepp, 14 Mo. 488; Pickard v. Sears, 6 Ad. & El. 469; Hearn v. Rogers, 9 Barn. & Cress. 577; Meriwether v. Lewis, 9 B. Monr. 177.) The note sued upon was the note of Norris alone, and the plaintiff must look to him for payment. There is no evidence that he is not able to pay it, and if there was, it could not be used to the prejudice of these defendants. As the names of Spenny and Cope are forgeries, this note, as to them, is a mere blank piece of paper; and being the note of Norris, any promise by the defendants or either of them to pay Norris' note was within the statute of frauds, and therefore the instructions for the defendants were properly given. (Jones v. Walker, 13 B. Monr. 360; 3 Metc. 396.) The question before the jury was whether the names of Spenny and Cope were forgeries, and evidence was given tending to show that they were forgeries committed by Norris himself with such skill and so similar to the genuine signatures as to require the strictest scrutiny to detect them, and in this connection the evidence of Norris' skill in such matters was offered, and it was surely competent and the very best evidence that could be given. The paper containing Cope's signature, offered to the jury as a comparison, was properly excluded. A party has no right to make his own selections of handwriting for comparison; and in fact no writing can be exhibited for this purpose except such as form a part of the case and are properly before the jury as original evidence. To allow a party to make his own selections would be unjust, as unfair specimens would always be selected. (1 Greenl. Ev. 649, and cases cited; 7 B. Monr. 270.)

SCOTT, Judge, delivered the opinion of the court.

This is a suit on a promissory note, and it is alleged that the defendant Cope and Weedon Spenny, the testator of the defendant, by their promissory note promised to pay the plaintiff the sum stated in the note. Stephen denies that his testator executed the note sued upon, and that it is or was his act. Cope denied that the note was his or that the plaintiff is entitled to judgment against him. A witness, who had seen Spenny and Cope write, was of the opinion that their signatures to the note were genuine. There was other testimony to the same effect. The note sued on was signed first by W. W. Norris, and after his name follow the names of others and of Cope and Spenny. Norris was a son-in-law of Spenny, and absconded some twelve months after the date of the note, which was payable twelve months after date, which was the 25th of October, 1856. The note was presented to Spenny by an agent of the plaintiff to know if his signature was genuine. Spenny remarked, after having...