Exchange Bank v. Robinson
| Decision Date | 11 January 1915 |
| Parties | EXCHANGE BANK, Appellant, v. EDWARD G. ROBINSON, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Daviess Circuit Court.--Hon. A. B. Davis, Judge.
Judgment affirmed.
Thos D. Williams and Leopard Fair for appellant.
C. C Crow and L. G. Gabbert for respondent.
--Plaintiff Bank claims to be the holder and owner of a note which purports to have been executed by Cunningham, defendant's intestate, to one Mitchell and transferred by the latter to plaintiff before maturity. The action was instituted by plaintiff presenting the note in the probate court for allowance against Cunningham's estate. Defendant denied the execution of the note under oath. The note was allowed in the probate court and defendant appealed to the circuit court, where, on trial anew, the judgment was for defendant.
The verbal defenses were non est factum and payment. Each of the defenses was submitted to the jury. Much of plaintiff's complaint here is in the nature of a demurrer to the evidence, yet no instruction of that character was offered at the trial. On the contrary, plaintiff asked the court to give instructions submitting the several issues to the jury. By instructions numbered 1 and 2 plaintiff submitted the issue of payment and cannot now say that the evidence did not make such issue. So, conceding the evidence was slight as to payment, plaintiff cannot now attack its sufficiency; it cannot convict the court for error it invited.
There was evidence from which the jury could conclude that deceased did not sign the note. We find that his son testified it was not his father's signature, in his opinion. But more than that, the note was itself before the jury while being examined and compared by experts called by plaintiff, with deceased's signature to other writings. The jury were entitled to form conclusions from this, in defendant's favor. But in addition to this plaintiff submitted that issue by instruction number 4.
We find no real objection to defendant's second instruction, though it is criticized by plaintiff. It, like plaintiff's first, submitted the question of payment, directing that if deceased paid the note the verdict should be for defendant, unless it was transferred to plaintiff before maturity as security for the payment of indebtedness due to plaintiff. The criticism is partly founded on the statement again repeated that there was no evidence of payment, but, as we have just stated, plaintiff cannot make such objection in the face of having itself directly submitted that issue.
A further criticism is that payment must be pleaded in order to be a defense. But this cause originated in the probate court where pleadings are not necessary: Cole County v. Dallmeyer, 101 Mo. 67. And if they were, plaintiff could not complain for, by its instructions it affirmed that it was an issue. It is too late on appeal to make the objection for the first time.
There was evidence tending to show that the amount of the note was written in words and figures with different ink and pen, and perhaps at a different time from other parts and that there were apparently three different handwritings in the note.
In this connection defendant's instruction number 3, is stated to be error. It submits that though the jury believed deceased signed the note, but at time of signing the amount thereof was blank and this was afterwards written or filled in by words and figures, and that deceased did not authorize anyone so to fill such blank by inserting the amount, then the verdict should...
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