Gaunt v. Harkness

• Decision Date: 05 May 1894
• Citation: 53 Kan. 405,36 P. 739
• Parties: GAUNT v. HARKNESS.
• Court: Kansas Supreme Court

36 P. 739

53 Kan. 405

GAUNT v. HARKNESS.

Supreme Court of Kansas

May 5, 1894

Syllabus

1. On the trial of an action on a promissory note, where the principal issue is as to the genuineness of the defendant’s signature thereto, it is error to permit the defendant to present to plaintiff’s witnesses, who are called to testify as experts, false signatures to notes prepared for the purpose of testing the ability of the witnesses to detect a forgery, and to cross-examine such witnesses as to such false signatures, and thereafter to introduce such signatures in evidence, and prove by another witness the fact that he wrote them himself.

2. The rule that writings to be used as a basis for the comparison of handwritings must be admitted to be genuine by the party against whom they are sought to be used, or at least clearly proven to be so, applies as well to writings used on the cross-examination of witnesses as on the direct.

Error from district court, Linn county; J. S. West, Judge.

Action by Thomas W. Gaunt against K. W. Harkness. Judgment for defendant, and plaintiff brings error. Reversed.

E. S Janes and Keeler, Welch & Wagoner, for plaintiff in error.

James D. Snoddy, for defendant in error.

OPINION

ALLEN, J.

Thomas W. Gaunt brought this action declaring on a promissory note for $1,500 which he alleged was executed by the defendant on the 23d day of January, 1889, due in one year, payable to J. S. Beck with or order, and by Beckwith duly indorsed to the plaintiff. The defendant answered, denying the execution of the note, and also denying that the plaintiff was a purchaser in good faith and for value. The case was tried with a jury, and the principal issue was as to the genuineness of the defendant’s signature to the note. Many witnesses were examined as experts, and testified from a comparison of handwritings as to the signature on the note. On cross-examination of the witnesses for the plaintiff they were shown a number of papers to which the name of the defendant was attached, which were not in evidence in the case, and concerning the genuineness of the signature to which no evidence had been introduced, and they were asked to give their judgment as to the genuineness of such signatures from a comparison with those already in evidence, and admitted by both parties to be genuine. Over the objection of the plaintiff the witnesses were required to answer the questions. Afterwards the defendant placed L. R. Sellers on the stand as a witness, and proved by him that certain of the signatures so used on cross-examination were written by himself. The plaintiff’s experts had been deceived by these counterfeits, and some of them had expressed the opinion that they were genuine. The principal claim of error in the case is based on the mode of cross-examination allowed by the court. That the failure of plaintiff’s witnesses to detect the forged signatures submitted to their inspection must have tended strongly to detract from the force of their testimony is apparent, and, if it was error to permit the use of papers prepared for the express purpose of breaking down the testimony of these witnesses, the error is so material as to require a reversal of the judgment. Probably there is hardly any rule as to the introduction of evidence on which courts express a greater diversity of opinion than that relating to the proof of handwriting by comparison. 1 Greenl Ev. § 576. It has frequently been said that the value of expert testimony is but slight, yet, inasmuch as business transactions in endless number and of great importance are carried on wholly on the faith of a recognition of signatures, it cannot be said that the testimony of experts accustomed to act on their recognition of the handwriting of persons with whom they deal is without weight. It is said in some of the earlier cases that the rule in the English common-law courts prior to the act of parliament making such evidence admissible was that evidence by comparison of handwriting could not be allowed as independent proof unless in relation to ancient writings, concerning which an exception was allowed; and there are cases in this country upholding this doctrine. Berryhill v. Kirchner, 96 Pa. St. 489; Strother v. Lucas, 6 Pet. 763; Kirksey v. Kirksey, 41 Ala. 626; Kinney v. Flynn, 2 R.I. 319. The admissibility of such testimony has been considered and sustained by this court in various cases. Macomber v. Scott, 10 Kan. 335; Joseph v. Bank, 17 Kan. 256; Abbott v. Coleman, 22 Kan. 250; State v. Zimmerman, 47 Kan. 242, 27 P. 999. In England now, and in all of the United States, the testimony of experts seems to be admitted by the courts. The divergence of opinion in the various tribunals is mainly as to the basis of comparison. In some states it is held that comparison can only be made with other papers already in evidence in the case. People v. Parker (Mich.) 34 N.W. 720; Randolph v. Loughlin, 48 N.Y. 456; Hynes v. McDermott, 82 N.Y. 41; Yates v. Yates, 76 N.C. 142. In other states it is held that comparisons may be made with writings introduced in evidence solely for the purpose of comparison, but that the genuineness of such writings must be admitted by the party against whom they are used (Dietz v. Bank [Mich.] 37 N.W. 220; Wagoner v. Ruply, 69 Tex. 700, 7 S.W. 80; Shorb v. Kinzie, 80 Ind. 500; Merritt v. Straw [Ind.App.] 33 N.E. 657), while in others it is said that writings with which comparisons may be made must be admitted or proved to be genuine. Where the latter rule prevails, it is generally said that the proof must be strong and clear, and sometimes that the genuineness must be proven clearly and beyond a reasonable doubt. Bragg v. Colwell, 19 Ohio St. 407; Pavey v. Pavey, 30 Ohio St. 600; Richardson v. Newcomb, 21 Pick. 315; Winch v. Norman, 65 Iowa, 186, 21 N.W. 511; Com. v. Coe, 115 Mass. 481; Rowell v. Fuller’s Estate, 59 Vt. 688, 10 A. 853; Hanriot v. Sherwood, 82 Va. 1; Sankey v. Cook, 82 Iowa, 125, 47 N.W. 1017.

It is urged by counsel for the defendant in error that it was proper to test the capacity of the plaintiff’s expert witnesses to detect a forged signature in the manner resorted to in this case, and that for that purpose signatures designed to deceive may be used; that the failure of the witness to point out which are genuine and which forged signatures conclusively shows that he is not an expert, and therefore his testimony is not to be credited. No cases are cited by him in...