Globe Printing Co. v. Stahl

• Decision Date: 23 November 1886
• Citation: 23 Mo.App. 451
• Parties: GLOBE PRINTING COMPANY, Respondent, v. FRED. STAHL, Appellant.
• Court: Missouri Court of Appeals

23 Mo.App. 451

GLOBE PRINTING COMPANY, Respondent,

v.FRED. STAHL, Appellant.

St. Louis Court of Appeals, Missouri.

Nov. 23, 1886.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

GEORGE A. CASTLEMAN, for the appellant.

O. B. GIVENS, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is an action to collect a debt alleged to be due upon contract. The case was tried before a jury; the plaintiff had a verdict and judgment, and the defendant has appealed.

The sole question which arises upon the record is, whether the court erred in admitting evidence of a conversation had through a telephone between the plaintiff's book-keeper and a person who answered to the defendant's name. The book-keeper testified that he “called up by telephone to the general office of the Bell Telephone Company for defendant's number, and was, by the central office, connected therewith; that the list of the telephone company showed that the defendant had two telephones, one at his undertaking establishment on Franklin avenue, in the city of St. Louis, and another at his livery stable, on Olive street; that witness was not certain which number he called, but that his best recollection was that it was the Olive street number; that there was an answer from the defendant's number to the telephone call; that he (the witness) did not know whose voice it was, and does not now know; that the witness did not know the defendant's voice, and did not know the defendant, but that he asked, through the telephone, if that was Stahl (the defendant), and the answer was “Yes.” The witness was then asked to give the conversation then had through the telephone with the party answering the call. In response to this question the witness testified, against the objection of the defendant, “that he asked why defendant did not pay the bill for which this suit was brought, and that the party answering said, ‘All right; I will attend to the matter about the first of the month.’ ” A previous witness had testified for the plaintiff to a conversation through the telephone in a similar manner with the defendant, whose voice the former witness identified.

We are of the opinion that the court correctly ruled that the testimony was admissible. We should have no difficulty in so holding upon principle, but we find on examination of the books several decisions upon analogous rules touching the admissibility of evidence. It is said by a recent writer of reputation: “Evidence that a person making a tender, found at the place of business of the other party a person answering to the name, who said he was the man and admitted the contract to be his, but refused to pay the money, is competent to go to the jury upon the question of identity, and sufficient to uphold a verdict.” Abbott's Trial Evidence, 316. It has been held in Massachusetts that a letter received through the postoffice, purporting to be written in reply to a letter sent to the person by whom it purports to be signed, is admissible without proof of the handwriting, though the question was not deemed important and was not much considered. The State v. Bradish, 14 Mass. 296, 297, 300. In Pennsylvania the plaintiff's attorney was permitted to testify that a person unknown to the witness had introduced himself to the witness, representing himself as the defendant, and promising to pay the debt sued on, and this, without other evidence of the identity of the person who so introduced himself and promised. In a case in the superior court of New York City, evidence that, on two or three occasions when the witness first called at the place of business of the defendant's testator, witness was told that the testator was out of town and that there was no one to represent him, and that subsequently the witness found there a person answering to the name of the defendant's testator, who said that he was the man and admitted the contract sued on to be his, but refused to pay the money due thereon, was held competent to go to the jury on the question of his identity and sufficient to uphold a verdict for the plaintiff, in the absence of any evidence tending to raise a suspicion of mistake or collusion. Howard v. Holbrook, 9 Bosw. 237, 243.

Several analogous English cases are also found.

Thus, where a witness, called to prove the defendant's handwriting, had corresponded with a person bearing his name, who dated his letters from Plymouth Dock, where the defendant resided, and where, it appeared, that no other person of the same name lived, this evidence of the defendant's identity was held sufficient. Harrington v. Fry, Ryl. & M. 90.

In like manner it was held by Lord Kenyon at nisi prius that if a letter be sent to a particular person, and an answer be received in due course, the fair presumption is that the answer was written by the person addressed in the letter, and accordingly he ruled that a witness who had so written such a letter and received such an answer, might be examined as to the genuineness of another paper, for the purpose of showing whether it was or was not written by the person with whom he had this correspondence. Carey v. Pitt, Peake Add. Cas. 130.

In an action for damages for a negligent injury in navigation, it was objected that the evidence did not show that the defendant was the pilot in charge of the vessel, whereupon the plaintiff called out in open court, “Mr. Henderson!” (the name of the defendant), and a man in court answered, “Here; I am the pilot.” A witness then testified that the man who had so answered was at the time acting as pilot. It was held, reversing an order directing a non-suit, that this was sufficient evidence of identity to go to the jury. Smith v. Henderson, 9 Mees. & W. 798, 801.

In another case a witness had stated that he had introduced a person of the name of the defendant to the plaintiff as a customer, and that he saw him write a letter, which was produced, and which established the plaintiff's claim; but the witness had not seen the person since, and did not know that he was the defendant. It was held that this evidence was admissible, and was sufficient to support a verdict for the plaintiff. Sewell v. Evans, 4 Q. B. 626.

In an action against an alleged acceptor of a bill of exchange, the only evidence of his acceptance was the testimony of a bank clerk to the effect that two years before he saw a person of the defendant's name sign his name in a book; that he had never seen him since, but that he thought that the handwriting was the same, and had since seen checks bearing the same signature. It was held that this evidence was admissible. Harrington v. Fry, 8 Scott, 384.

In a similar action against the alleged acceptor of a bill of exchange, it appeared that the bill had been sent by mail for acceptance, directed to “Charles Banner Crawford, East India House,” and that it had been returned accepted, “C. B. Crawford.” A witness testified that the signature to this acceptance was the signature of Charles Banner Crawford, who was formerly a clerk in the East India House, but the witness did not know whether that Mr. Crawford was the defendant. It was held that this was sufficient evidence of identity, at least in the absence of an affidavit to show that the defendant was not the same person. Greenshields v. Crawford, 9 Mees. & W. 314.

Any person examining...