Fulton v. Hood et al.

• Decision Date: 01 January 1859
• Citation: 34 Pa. 365
• Parties: Fulton versus Hood et al.
• Court: Pennsylvania Supreme Court

Page 365

34 Pa. 365

Fulton versus Hood et al.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Westmoreland county.

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Foster, Cook, Clarke & Markle, for the plaintiff in error.

Cowan, for the defendants in error.

The opinion of the court was delivered by STRONG, J.

Twenty-one errors have been assigned to this record. Many of them, however, are but repetitions of others clothed in a dress slightly different, but having the same body. Under the plea of non est factum, the defendant introduced evidence to show that an alteration had been made in the date of the bond after its execution and delivery. The instrument was twice dated; once at the end of the penal part, and again at the close of the warrant to enter judgment thereon. The scrivener who wrote it testified positively, that no alteration was made after its signature. On the other hand, the sons of the defendant, on account of whose indebtedness the bond was given, testified that when it was signed by their father, the date was the 10th of July 1854, instead of the 11th of May 1854, and that it was but once dated. The allegation of the defendant, therefore, was that the last line of the instrument had been added, after its execution and delivery, and after it had been taken away by the agent of the plaintiffs. To meet this allegation, the plaintiffs were allowed to call experts, and prove by them, that in their opinion the whole instrument, including the last line, was written by the same hand, with the same pen and ink, and at the same time. This evidence was objected to by the defendant, and its admission constitutes the subject of the last nine assignments of error. That it was relevant and material cannot be doubted, for it is obvious, that if the last line of the bond, which contained the date, was written at the same time with the other parts of the instrument, the testimony of the scrivener was completely sustained, and the defence failed. Nor was it contended in the court below, that the witnesses were not experts, but the objection as urged here is, that the subject-matter of their testimony was not competent, that the facts testified to by them could not be legitimately thus proved. It is to be observed, that the evidence was offered only after direct testimony had been given to prove that the bond was genuine, and that it was in the same condition as when signed by the defendant. It was admitted, not as independent, but as corroborative evidence. The case does not require a discussion of the extent to which courts of law have permitted experts to express opinions in regard to handwriting. The rule upon this subject is not the same in different courts, and even in the same court, the decisions have not been uniform. It appears to be generally conceded that, where other writings admitted or proved to be genuine, are already in the case, a jury may compare the handwriting. In such comparisons, Greenleaf asserts the doctrine to be, that they may be aided by experts: 1 Greenleaf Ev. § 578. Experts are also allowed to testify, whether the handwriting be natural or feigned. So, too, it has been ruled, that when one writing crosses another, an expert may testify which, in his opinion, was first written: 4 Moore P. C. Cas. 433. I am aware that it has been said that, though such opinions are admissible, not much reliance is to be placed upon them. Doubtless, it is for the jury to determine how much. But why is not the testimony of the same nature with that which is generally adduced to prove handwriting? The witness who has seen another write but once, may testify to his belief, and that belief is but a deduction which he makes from a comparison with the exemplar in his mind. Why should that exemplar be regarded as more reliable than one presented to the expert's eye? In the present case, the greater part of the bond was proved to be in the handwriting of McKinney, the scrivener, and he had sworn that the whole was written at the same time. In corroboration of his testimony, we see no reason why experts should not have been permitted to testify that the writing itself indicated what the positive testimony of the scrivener declared.

The remaining errors assigned relate to the rejection of evidence offered by the defendant to sustain his equitable plea of payment with leave, &c. The first, second, third, and eighth present the same question. The court overruled the offer of the defendant to prove that, before and at the time when the bond was written, James Bonbright, one of the plaintiffs, represented that he had authority to settle the claims of the Philadelphia creditors, and that, unless the bond was executed, they would indict the sons of the defendant for obtaining goods under false pretences, and send them to the penitentiary; that they had determined to do so; and that these representations were untrue. It is not easy to see how this, if proved, would have been at all material. The alleged representations were not assertions of existing facts, but, at most, of intentions, in their nature almost incapable of proof, or of disproof, and in no particular affecting the consideration of the bond. That they may have presented a motive inducing the father to secure the debts due from his sons, is possible. But a party who seeks release from the obligation of his bond, on the ground of actual fraud or misrepresentation, must establish that there was a false representation of a matter of substance, important to his interests, and actually misleading him to his hurt. A false affirmation of a matter resting in opinion, or even of a fact equally open to the knowledge or inquiry of both parties, is not available for any such purpose. Here the parties dealt upon equal terms. There was no relationship of confidence between them. Bonbright was a creditor...