First Nat. Bank v. Wisdom's Ex'rs

• Citation: 111 Ky. 135,63 S.W. 461
• Parties: FIRST NAT. BANK OF PADUCAH v. WISDOM'S EX'RS. [1]
• Decision Date: 04 June 1901
• Court: Court of Appeals of Kentucky

63 S.W. 461

111 Ky. 135

FIRST NAT. BANK OF PADUCAH v. WISDOM'S EX'RS. ^[1]

Court of Appeals of Kentucky.

June 4, 1901

Appeal from circuit court, McCracken county.

"To be officially reported."

Action by B. H. Wisdom's executors against the First National Bank of Paducah. Judgment for plaintiffs, and defendant appeals. Affirmed.

Quigley & Quigley and J. W. Bloomfield, for appellant.

Henry Burnett, for appellees.

HOBSON J.

B. H Wisdom died on October 28, 1896, and appellees qualified as his executors. He left a large estate. In November, 1896, the appellant, the First National Bank of Paducah, presented to the executors a note dated August 22, 1896, due on demand for $5,000, and purporting to be executed to it by the testator. Appellees, on February 9, 1897, paid appellant on the note $3,140; but after this refused to pay the balance and instituted this action to recover of appellant the amount they had paid, alleging that the note was a forgery, and without consideration. The bank, by its answer, denied that the note was a forgery, and alleged that it was executed to it by the testator, who signed it with his own hand, and delivered it to the bank for the sum of $5,000 loaned at the time to him by it. A reply was filed denying these allegations, and on trial before a jury a verdict was returned in favor of the executors for the amount they had paid. Judgment was entered upon this verdict, and the bank appeals.

It is insisted for appellant that the court erred in allowing the executor to plead non est factum and want of consideration, on the ground that the two pleas cannot be joined. In Smith v. Doherty, 60 S.W. 380, this court held that the two pleas are not inconsistent, and they may both be made in the same pleading. The weight of authority and the reason of the rule sustain this conclusion, especially in the case of a personal representative who has no knowledge of the facts.

At the date of the note M. G. Cope was president of the bank; T. A. Baker was cashier. Baker knew nothing of the execution of the note. The teller knew nothing about it. The only officer of the bank who professed to know anything about it was Cope, the president. The note was entered in his handwriting on the discount book of the bank, and he stated to the executors, when demand was made of the payment of the note, that the bank paid Wisdom $5,000 in currency, which it loaned him on the note on August 24th. The date of the note, August 22d, was Saturday, and the entry on the discount book was in Cope's handwriting on Monday, the 24th. It appears from an examination of the bank books by experts, who compared the deposits and checks paid on the 24th, that $5,000 in money was not paid to any one on that day; but it also appeared that what is called a "cash item" for this amount was taken out on that day,--that is to say, the money had previously been withdrawn, and a cash ticket or paper of some description had been carried in place of it. At the time of the transaction Wisdom had something over $3,000 on deposit with the bank, and more than twice as much on deposit with another bank in New York. Shortly before the suit was filed, and after the $3,140 had been paid, Cope, the president of the bank, absconded from Paducah, a confessed forger and defaulter. The signature to the note in contest was proved by a number of witnesses not to be the signature of the testator. There were as many or more witnesses, however, with equal opportunities for judging, who testified that they thought it was his signature. The note was never presented to the testator, although he was daily about the bank until shortly before his death. The $5,000 was not credited to him on his account with the bank, and there was no showing that he bad used it in any way. On the contrary, the jury were warranted in concluding, from the proof as to the careful business habits of the testator, that the had not received in person this money. For some time before the date of this note Cope's habits had been bad. He had been speculating in cotton, and, perhaps, in corn, and had sustained heavy losses. There was some proof tending to show that the testator, who was an intimate friend of Cope's, had been concerned with him at one time in some of these speculations, although the date and extent to which he was interested are very uncertain. The original note, and a number of other signatures of the testator, admitted to be genuine, which were used on the trial, have been filed with the transcript, and from an examination of the signature, and all the evidence, we reach the conclusion that the verdict of the jury should not be disturbed on the facts, if the case was properly submitted to them.

It is earnestly insisted for appellant that there were grave errors in the admission of evidence on behalf of appellees. The court permitted T. E. Boswell to testify, in effect, as follows: "In the latter part of August, before Mr. Wisdom's death, while Cope was president of the First National Bank, he stated he had a note for $10,000.00 signed by Mr. Wisdom. I did not see the note. I did not see the figures, nor the signature, but he showed me a paper, and said it was a note amounting to ten thousand dollars of Mr. Wisdom. He stated to me that he had a note to Mr. Wisdom for ten thousand dollars. R. F. Allen and myself were on a note we had given for $5,000.00, and we wanted him to fix it up, and he had a note in his pocket, and he said he thought in a few weeks he could fix it up; that he had Mr.

Wisdom's note for ten thousand dollars." On cross-examination, the witness stated: "He said he was going to buy some corn, and Wisdom was going into the deal with him. This occurred on the street, as he was coming from home. He afterwards told me he did not get the money on the note, and they did not go into the deal." R. M. Chowning testified as follows: "I am cashier of the First National Bank of Fulton. I visited Mr. Cope about September 19, 1896, and remained all night at his house. [He asked me when the bank examiner, Mr. Escott, would probably be around again, to which I replied that I did not know, but that he would perhaps be here before very long. He said he was all right in the bank; that he only had a demand note for $2,500.00 in the cash drawer, which he could arrange very easily if necessary;] whereupon he drew from his pocket a note for $5,000.00, payable twelve months after date, to the order of M. G. Cope, and signed by B. H. Wisdom. [Said he told the old gentleman that he was in hard luck, and might need it, and Mr. Wisdom gave him that note.] The body of the note was the handwriting of Mr. Cope. I think it was dated, but do not remember the date." The court excluded the words inclosed in brackkets, but admitted the remainder. The court also permitted the petition in the case of appellant against the Fidelity & Deposit Company of Maryland, the surety of Cope in his official bond, to be read in evidence, which contained allegations to the effect that M. G. Cope, while president of the bank, embezzled $13,000 of the money of the bank in November, 1896; that on the 28th day of November, 1896, he fraudulently took from the bank $6,000; that, in order to conceal the embezzlement, he placed in the bank a forged note, purporting to be signed by R. A. Hays and W. J. Slayden for $6,000; that on or about the 12th of November, 1896, he embezzled the further sum of $7,000, and placed in the bank two other forged notes, for $3,500 each, one purporting to be signed by G. R. Allen, and the other by S. G. Griffith." It is said that the statements of appellant's petition in its action against the Fidelity & Deposit Company were competent as admissions of the party in interest. This is true if it was an admission of a relevant fact. But admissions of irrelevant facts, though made by a party himself, are no more competent than other proof of such facts.

It remains, therefore, to inquire whether the facts shown by the above evidence were relevant, and, as all the evidence seems governed by the same principles, it will be discussed together. The general rule is that, where the question is whether a certain person forged a particular instrument proof is inadmissible that on another occasion he forged another paper, wholly disconnected with the one in controversy. Dodge v. Haskell, 69 Me. 429; Dow v. Spenny, 29 Mo. 387; Viney v. Barss, 1 ESP. 293; Balcetti v. Serani, Peake, 192. The reason given in one case was that the plaintiff would not be prepared to show the genuineness of other writings, and in subsequent cases that such proof introduced a foreign and irrelevant matter, destroying the unity of the issue. On the other hand, where there is a connection between the transactions, they may be given in evidence. Thus in Knight v. Heath, 23 N.H. 410, the genuineness of a marriage certificate was in contest, and it was held competent to prove that a certificate purporting to be signed by a justice of the peace to the same effect, and written on the same piece of paper, was a forgery. The court said: "Where...