Durnell v. Sowden

• Decision Date: 29 June 1887
• Citation: 5 Utah 216,14 P. 334
• Court: Utah Supreme Court
• Parties: ELIZA DURNELL, RESPONDENT, v. JOSEPH SOWDEN, APPELLANT

14 P. 334

5 Utah 216

ELIZA DURNELL, RESPONDENT, v. JOSEPH SOWDEN, APPELLANT

Supreme Court of Utah

June 29, 1887

APPEAL from a judgment of the district court of the third district and from an order overruling a motion for a new trial.

The complaint in this action alleged that on or about the 15th day of May A. D. 1885, defendant indorsed to plaintiff a certain promissory note in writing made by one A. Case, dated January 1st, A. D. 1884, that said note became due on January 1st, A. D. 1885, and was presented for payment on the 6th day of July, 1885, and payment refused.

Defendant upon the trial objected to the introduction of any evidence on the part of the plaintiff, because the complaint did not state facts sufficient to constitute a cause of action.

Because it appeared that the note in suit was indorsed after maturity by the defendant, to-wit: on the 15th of May, 1885, and was not presented for payment to the maker until the 6th day of July, 1885, and that no excuse for the delay and negligence was stated, whereupon the court overruled said objection, to which defendant's counsel then and there excepted.

Plaintiff was then sworn in her own behalf, and testified that she saw the defendant indorse his name on the back of the note, about the last of April or the first of May, 1885, at his house in this city, in the presence of Bishop Wooley. Theodore McKean and herself, and delivered to her. Plaintiff proved demand and notice as in the complaint stated, and that the defendant had not paid the note or any part thereof. Evidence was also introduced by plaintiff that the signature of defendant upon the back of the note was written in violet ink. Whereupon the defendant was called on behalf of the plaintiff and identified certain paper writings exhibited to him as being in his handwriting, and having been written by him, which were marked respectively exhibits "A," "B," "C," "D," and testified that exhibits "A" and "C" were letters written by him to Edward Case, the father of the maker of the note, (the said exhibits "B" and "D" appeared to have been written in violet ink), whereupon the plaintiff offered said exhibits in evidence, to which offer the defendant objected for that the same were irrelevant immaterial and incompetent, and did not tend to support any of the issues by the pleadings, whereupon the court overruled said objection and admitted in evidence said exhibits, and each of them, to each of which rulings the defendant then and there excepted.

Of said exhibits, exhibit "A" was alone at any time read to the jury, thereupon Joseph H. Hurd, a clerk in the office of plaintiff's attorneys, J. L. Rawlins, one of the plaintiff's attorneys, and Arthur Brown, an attorney of this court, were respectively sworn and examined on the part of the plaintiff and were permitted to examine the several exhibits aforesaid in detail, and the said Hurd and the said Rawlins testified that they each had compared then indorsement on the note with the names and letters contained in said exhibits prior to the trial of the action with a view of ascertaining the genuineness of the alleged indorsement and the said Brown testified that he saw and examined the signature on the back of the note in court on the evening of the first day of the trial and he, the said Brown, was then and there permitted to examine the said exhibits in evidence for the purposes of comparison, and each of said witnesses then and there testified that in their opinions the indorsement on said note was, and they each of them believed it to be genuine. Witnesses Hurd and Rawlins giving testimony founded upon a comparison actually made by them by the signature on the note with the handwriting in the exhibits prior to the trial, and the witness Brown testified upon a comparison made by examining the indorsement on the note on the 11th of March, 1887, and the handwritings in the exhibits without having the note, on the 14th day of March. The note in suit, with the alleged indorsement thereon, was produced by the plaintiff on the first day of the trial, but was not introduced or read in evidence, and the same was on said day lost or mislaid, and thereafter could not be and was not found. To the testimony of each of said witnesses, and the whole thereof and to the submission of said exhibits to the said witnesses and each of them for the purposes of comparison, the defendant duly objected, for that the same were irrelevant, immaterial and incompetent, and that said exhibits were collateral to the suit and immaterial, but the court overruled the objection and defendant excepted.

The defendant in writing requested the court to charge as follows, to-wit:

"If you believe from the evidence that the defendant indorsed the note in suit to the plaintiff on the 15th day of May, 1885 and that the time elapsing between that date and the 6th day July, 1885, when the note was presented to the maker for payment, was an unreasonable time, and that under all the circumstances the plaintiff was negligent in not presenting the note sooner, you will find for the defendant." But to give said charge or any part thereof the court refused and did not substantially or otherwise charge as requested to which refusal the defendant then and there excepted. The remaining facts are found in the opinion.

Affirmed.

Mr. Charles S. Varian and Mr. Frank Pierce, for the appellant, argued that the court erred in refusing to exclude all evidence under the complaint.

A promissory note indorsed after maturity, must be presented within a reasonable time, to charge the indorser Daniel Negotiable Instruments, Vol. 1, Sec. 611; Parsons on Contracts, Vol. 1, p. 256; Field v. Nickerson, 13 Mass. 136; Thayer v. Bractett, 12 Mass. 450; Berry v. Robinson, 9 Johns., 121; Patterson v. Todd, 18 Pa. St., 426.

When the facts are ascertained, the question is one of law for the court, otherwise for the jury: Daniel Neg. Instruments, Vol. 1, Sec. 612; School District v. Com., 84 Pa. St., 471; Poorman v. Mills, 39 Cal. 345; Himmelman v. Hotaling, 40 Cal. 111; Wallace v. Agay, 4 Mason, 336; Parsons Notes and Bills, Vol. 1, 340; Wyman et al., v. Adams, 12 Cush., 210.

The holder must plead and prove the circumstances excusing delay: Jerome v. Stebbins, 14 Cal. 457; Keyes v. Fenstermaker, 24 Cal. 329; Statutes Utah, 1882, p. 57, section 55.

This note having been indorsed after maturity, payment should have been demanded within a reasonable time: Daniel Negotiable Instruments, secs. 611 and cases cited, sec. 995; 1 Parsons' N. & B., 519, note.

The indorsement is in fact a draft upon the maker through the indorsee for immediate payment.

What is a reasonable time, seems to be a perplexed question: See McKewer v. Kirtland, 33 Iowa 352; Colt v. Barnard, 18 Pick., 260; Keyes v. Fenstermaker, supra; Wyman et al v. Adams, supra; Daniels, Vol. 1, sec. 470, et seq.

The appellant was entitled to have the court, at least, submit the question of delay to the jury. The note was indorsed long after maturity, but was not presented for nearly two months after indorsement, although all the parties lived in the same city. If this note had been indorsed one day before maturity, there would be no question that the indorser was discharged. But it is suggested that the statute in relation to negotiable instruments (Laws 1882, p. 50) determines the question against appellant.

We do not see that this statute relaxes the rule. It has apparently undertaken to relieve against the consequences of mere delay in presenting interest-bearing demand or sight notes. But we find nothing in its provisions limiting or modifying the rules relative to presentment for payment of other negotiable notes.

The court erred in admitting the testimony as to handwriting.

The rule of the common law permitted no comparison of disputed writing with another written specimen of the same individual, produced in court, either by the court, jury, or witnesses.

To this rule there is an exception; that when the collateral writing is admitted or proven to be in the handwriting of the party, and is in evidence for other purposes in the cause, it may be compared with the disputed writing by the jury, but not by witnesses: Greenleaf on Evid., Vol. 1, sec. 580 and 581; Taylor on Evid., Vol. 2, secs. 1863 and 1869; Wharton on Evid., Vol. 1, secs. 712 and 713, et seq., and notes; Phillip's Evidence, Vol. 2, top page 512, et seq., and note and page 517; Doe v. Newton, 5 A. & E., 574; Young v. Homer, 2 M. & Rob., 537; Griffiths v. Ivory, 11 A. & E., 322; Hughes v. Rodgers, 8 M. & W., 125; Mudd v. Tuckermore, 5 A. & E., 703; Stranger v. Searl, 1 Esp. 14; Perry v. Newton, 5 A. & E., 517.

In the United States the authorities are conflicting, but the great weight of judicial opinion is against the admission of this evidence.

And the federal courts are in line with the authorities of England and America: Strother v. Lucas, 6 Peters, 763; Rogers v. Ritter, 12 Wall., 317; Moore v. U.S. 91 U.S. 270; Needway v. U.S. 6 Ct. Claims, 421, and cases cited at page 407, Lawson Expert Evidence.

The common law, in the absence of statute, is the rule of decision in this territory, whether it is founded in reason or not, and the courts have no power to alter it.

Messrs. Sheeks & Rawlins, for respondent.

The first point made in appellant's brief is not well taken. It is universally agreed by the authorities that the holder of a note, who indorses it when overdue, is to be deemed an indorser of a note payable on demand, and the same principles of law in respect to demand and notice are applicable: Benjamin Chalmers' Digest of Bills, Notes and Checks. 159; 2 Parson's Notes and Bills, 13.

This being so, demand of payment was made within proper time under the law as it is settled in this...