Griffith v. Hanks

• Decision Date: 28 February 1887
• Parties: Griffith, Plaintiff in Error, v. Hanks
• Court: Missouri Supreme Court

4 S.W. 508

91 Mo. 109

Griffith, Plaintiff in Error, v. Hanks

Supreme Court of Missouri

February 28, 1887

Appeal from Scotland Circuit Court. -- Hon. B. E. Turner, Judge.

Affirmed.

Smith Silver & Brown and Blair & Scofield for plaintiff in error.

(1) Under the plea of non est factum, the testimony offered to show the consideration of the note was clearly inadmissible in evidence. The doctrine is now well established that a negotiable note in the hands of an innocent holder for value is protected from all inquiry into its consideration. Bennett v. Torbina, 56 Mo. 309; Merrick v Phillips, 58 Mo. 436; Hamilton v. Marks, 63 Mo 167; Durkee v. Chambers, 57 Mo. 575; Sheets v. Overjohn, 60 Mo. 305; Capital Bank v. Armstrong, 62 Mo. 59. It would seem that this testimony must have been admitted in evidence under authority of the mischievous doctrine announced in the cases of Briggs v. Evart, 59 Mo. 245; Washington Bank v. Ecky, 51 Mo. 272; Martin v. Smyle, 55 Mo. 577; Corby, Ex'r, v. Wedle, 57 Mo. 459; which have been expressly overruled and repudiated. Sheets v. Overjohn, 60 Mo. 305; Capital Bank v. Armstrong, 62 Mo. 59. (2) The instruction, the sixth in plaintiff's series, should have been given. The rule now fully recognized and established in this state is, that such papers can only be offered in evidence to the jury as a standard of compensation, when no collateral issue can be raised concerning them, which is (a) only when such papers are either conceded to be genuine; or (b) on such as the other party is estopped to deny; or (c) on papers belonging to the witness, who was, himself, previously acquainted with the party's handwriting, and who exhibits them in confirmation of his own testimony. 1 Greenl. Evid., sec. 581; State v. Clinton, 67 Mo. 381; State v. Thompson, 71 Mo. 614; Corby, Ex'r, v. Wedle, 57 Mo. 459; State v. Scott, 45 Mo. 303; Springer v. Hall, 83 Mo. 693. (3) The testimony upon which the refused instruction was based had been given to the jury without objection, and it was proper for the court to tell them, by an instruction, what effect they were authorized to give the same.

McKee & Smoot for defendant in error.

OPINION

Ray, J.

This was a suit upon a negotiable promissory note. The note bore date December 21, 1880; was for the sum of two hundred and ten dollars, payable to the order of Eagle Machine Works, at Citizens' Bank, Memphis, Missouri, six months after date, and purported to have been executed and signed by, and in the name of, John C. Hanks, the defendant, and also purported to have been assigned to plaintiff, for value, before maturity. The answer was the plea of "non est factum," supported by affidavit. The reply, the general issue.

At the trial, before a jury, the evidence was, substantially, as follows: It was admitted, by the defendant, that the payee in said note was a corporation, duly organized, and that the note was assigned to the plaintiff by its authorized manager, J. C. Farr. The plaintiff, to further sustain the issue on his side, introduced, as a witness, H. G. Pitkin, who testified that he was acquainted with the defendant, John C. Hanks, and somewhat acquainted with his hand-writing; has had some notes on him; has been in the banking and brokerage business for several years, and made the examination of signatures a study. The witness, being handed the note in suit, was asked if he could state in whose hand-writing the name of John C. Hanks thereto, was, and said it was the defendant's hand-writing. He was then handed plaintiff's admitted assessment lists, and asked to compare the signatures to the same with that to the note; and state if he could say, from said comparison, in whose hand-writing the signature to the note was, and he answered, that, in his opinion, it was in defendant's hand-writing. On cross-examination, he stated that the signature to the note might not be that of defendant, but that it looked very much like his signature.

H. Wine, the county assessor, being sworn for the plaintiff, stated that he took the assessment lists of defendant for 1879, and, also, 1880, and knows that defendant signed the lists himself, for one year, and thinks he signed for the other. J. W. Barnes, being sworn for plaintiff, stated that he was a broker, and cashier of the Scotland County National Bank; that he had made it a part of his business to examine signatures to notes. The witness, being handed the note in suit, and defendant's said assessment lists, was asked to compare the signatures to the same, and state his opinion as to said signatures, and he said that, in his opinion, the person who wrote the name to the note also wrote the names to the assessment lists. On cross-examination, he said the signature of Hanks was one that would not be hard to counterfeit; that the signature to the note was written in ink, with a pen. Plaintiff then offered in evidence the note in suit, together with the assignment of same to plaintiff by the authorized manager of said corporation, as well as defendant's said assessment lists, all of which were submitted to the jury, and the plaintiff here rested.

The defendant, being sworn on his behalf, and being handed the note in suit, testified that he never signed said note; that the signature, John C. Hanks, was not his. He further stated "that, on the twenty-first of December, 1880, a man claiming to be the agent of the Eagle Machine Works, of Cleveland, Ohio, came to his home, in company with Smith, from Memphis, Missouri, and said that he had my contract for three corn-crushers, at seventy dollars each, and wanted me to pay, or give my note, for same. I had never given any contract to buy corn-crushers." Plaintiff here objected to this evidence, tending to show the consideration of said note, as being inadmissible in this suit, by endorsee for value before maturity. The objection was overruled, and plaintiff excepts to the ruling. The witness then stated that, some time in 1880, a man claiming to be the agent of the Eagle Machine Works called to see him, and wanted him to become local agent for the sale of corncrushers, and that he signed an agreement to become such, but never signed an agreement to purchase corncrushers. Plaintiff, as before, objected to this evidence as inadmissible in this suit; and, as before, the court overruled the objection, and plaintiff excepted to the ruling, as before. Defendant then testified that, when the second agent came around, he did sign a note to the Eagle Machine Works, for two hundred and ten dollars, due in six months, and payable at Citizens' Bank, with ten per cent. interest from date; that the note he signed had the words, "order of" and "negotiable," scratched out; that he would not sign a negotiable note, and had the above words scratched out. To this, also, plaintiff objected, because the note (in suit) showed, on its face, that it had not been defaced, and that the only question was, did the defendant sign it? But the record fails to show that plaintiff excepted to this ruling of the court. On cross-examination, defendant, being asked how many papers he signed that day, said, "I believe there were two. I signed two papers and gave them to the agent, and he signed one and gave it to me. I read over all these papers before signing them, and knew what I was signing." Being asked if he did not write to the Eagle Machine Works, concerning this note, the witness replied: "I got my attorney to write about the note I had signed." Witness was here handed the assessment lists, and he admitted that he signed one, and might have signed the other. The note in suit was then shown witness, and he was asked if the signature to it was his, and he said no, but that it resembled his signature. "I signed with a pencil the agent had. I see that my name, J. C. Hanks, to this note, is written with ink and pen."

William Hanks, son of the defendant, testified: "I was present at the time of the transaction between my father and the agent, and I heard the note read over that my father signed,...