Harris v. Bank of Jacksonville

• Decision Date: 08 September 1886
• Citation: 22 Fla. 501,1 So. 140
• Parties: HARRIS v. BANK OF JACKSONVILLE and another.
• Court: Florida Supreme Court

1 So. 140

22 Fla. 501

HARRIS v. BANK OF JACKSONVILLE and another.

Florida Supreme Court

September 8, 1886

Appeal from circuit court, Duval county.

The appellant, Harris, filed his bill in the circuit court for Duval county, in chancery, praying that a certain draft dated July 23, 1884, drawn by said Harris, to his order, on Maxfield & Co., for $5,000, payable six months after date indorsed by Harris to the Bank of Jacksonville, accepted by Maxfield & Co., and held by said bank, should be delivered up and canceled; and that an action at law by said Bank of Jacksonville against Maxfield & Co., on said draft, should be enjoined. The grounds for relief alleged in the bill are, in substance, that said draft was obtained by the Bank of Jacksonville from Harris for the surrender to him of a draft of $5,000, drawn on and directed to said Harris, at Citra Florida, by H. P. Robinson & Bro., dated February 20, 1884 payable five months after date, accepted by Harris, and sold and indorsed by H. P. Robinson & Bro. to said bank; that said last-mentioned draft was materially altered after Harris' acceptance thereof, and without his knowledge, consent, or ratification, by adding thereto the words, 'Payable at Metropolitan National Bank, New York city;' that at the time said bank discounted said draft said alteration was made, with the knowledge and by the procurement of said bank; that said Harris was a mere accommodation acceptor of said draft; that H. P. Robinson & Bro. are insolvent; that, when said Harris took up said last-mentioned draft, and gave to said bank the draft on Maxfield & Co., he was ignorant of the said alteration which had been made in the draft of February 20, 1884.

The Bank of Jacksonville answered said bill, denying, upon information and belief, that there had been any alteration of said draft as accepted by Harris, and denying positively that Harris was an accommodation acceptor thereof, and that any alteration was made in said draft by the procurement or with the knowledge of said bank; and stating that said bank bought said draft in good faith, before maturity, for its full face value, less the usual discount. There was a general replication, testimony was taken, and upon the hearing, the circuit judge dismissed the bill, from which decree the appellant took his appeal to this court. The other facts of the case are sufficiently stated in the opinion.

Syllabus by the Court

SYLLABUS

A party to an action cannot be examined as a witness in his own behalf concerning 'a transaction or communication' had with a party deceased at the time of such examination, against the 'assignee' of the deceased person, although one jointly interested with and represented by the deceased, yet not in fact participating in the transaction, still survive, unless such assignee be examined in his own behalf as to such transaction, or the testimony of the deceased person concerning it be given in evidence. ^[1]

If the acceptor of a bill of exchange allege affirmatively that it has been altered materially, and without his authority, since he accepted it, the burden is upon him to prove the alleged alteration. The production of the bill will, if the alteration is apparent upon its face, make a prima facie case for the acceptor, and throw the burden upon the holder to show that the alteration was made before it was accepted. The party producing and claiming under the paper must explain every apparent material alteration, and remove every suspicion thereof, of which there is evidence on its face, before he can recover. If there is nothing upon the face of the bill to indicate or put one on notice as to the alteration, the acceptor must prove it by extraneous testimony.

The bill of exchange in question was drawn on a printed blank form, all the blanks being filled in the handwriting of C. F. R., in whose handwriting were also the words, 'Payable at Metropolitan National Bank, New York city.' The words, 'Accepted. JAS. A. HARRIS,' in Harris' handwriting, were in red ink, and the other writing on the paper in black ink. Held, that there was apparent, upon the face of the bill of exchange, no alteration, nor any presumptive evidence or reasonable ground for suspicion thereof.

COUNSEL

Fleming & Daniel, for appellant.

A. W. Cockrell & Son, for Bank of Jacksonville.

J. M. Barrs, for Maxfield & Co.

OPINION

RANEY J.

The acceptance by appellant of the bill of exchange of February 20, 1884, though in law a transaction between him and both members of the firm of H. P. Robinson & Bro., was in fact conducted between him and the deceased member, C. F. Robinson, who, though acting for his firm, was the only one of them who actually participated in the negotiation and consummation of the transaction with the appellant.

The act of 1874, (chapter 1983, § 24, p. 518, McClell. Dig.,) after declaring that no person shall be excluded as a witness by reason of his interest in the event of the action, or because he is party thereto, enacts, in the form of a proviso, 'that no party to such action, or person interested in the event thereof, nor any person from, through, or under whom any such party or interested person derives any interest or title, by assignment or otherwise, shall be examined as a witness in regard to any transaction or communication between such witness and the person at the time of such examination deceased, * * * against the executor, * * * assignee, * * * or survivor of such deceased person; but this prohibition shall not extend to any transaction or communication as to which any such * * * assignee * * * shall be examined on his own behalf, or as to which the testimony of such deceased person shall be given in evidence.'

It is claimed by appellant, who was complainant in the lower court, that at the time he accepted the bill of exchange the words, 'Payable at Metropolitan Nat. Bank, New York city,' which now appear immediately above what he charged to be in fact his acceptance on the face of the paper, were not on it, but that they have been added since, and that the acceptance made by him was in the following language: 'Accepted. JAMES A. HARRIS,'--and none other. As the bill of exchange now stands, the acceptance is in the language quoted in this paragraph.

The acceptance of this parer was--barring for the present the effect of the fact that C. F. Robinson was acting in behalf, not only of himself, but also of a partner who is still living, (a point to be considered hereafter)--a 'transaction' with a deceased person, within the meaning of the statute, and it seems clear that Harris is excluded from testifying as to any addition to or alteration of the acceptance having been made. The acceptance is the transaction, and to testify as to what were its real terms is unquestionably testifying as to the transaction between Harris and a person who was dead when Harris was examined as a witness, and as to which no one else in fact participated in transacting.

In Raubitschek v. Blank, 80 N.Y. 478, where there was an exchange of lands between Herdfelder and Blank, Blank gave Herdfelder a check for the amount of the difference in value, and Herdfelder gave Blank a receipt, and Herdfelder assigned the check to Raubitschek, and died prior to the trial, it was held that Blank was incompetent to testify on the trial as to the transaction between him and Herdfelder.

In Boughton v. Bogardus, 35 Hun, 198, an action brought to recover the value of services rendered by the plaintiff, a female, to defendant's intestate prior to February 7, 1882, the plea was payment. Upon the trial before the referee the defendant produced a receipt, executed by the plaintiff, by which she acknowledged the receipt of $50 from the intestate, in full of all demands, of whatever nature or kind, up to date, February 11, 1882, and proved that she had delivered it to the deceased. The plaintiff was then allowed, against the defendant's objection, to testify that the words italicised had been added since she signed and delivered it to the intestate, and were not there when she signed it, but the supreme court, on appeal, held the testimony to be inadmissible, as it related to a personal transaction between the witness and the deceased. The execution and delivery by the plaintiff to the deceased of the receipt were declared to be clearly a personal transaction between herself and the deceased.

In Foster v. Collner, 107 Pa. St. 305, the decision was that, where a note in suit is in the same condition at the trial as at the death of the assingnor, the assignee cannot testify that it is now partly in pencil. Smith v. Burnet, 35 N. J. Eq. 314; Louis v. Easton, 50 Ala. 470; Pease v. Barnett, 30 Hun, 525.

There can be no doubt that an attempt to show by Harris that the alleged addition was made to the acceptance would be within the prohibition of the statute, if C. F. Robinson, with whom he actually dealt, had been solely interested, and acting for himself only, on his side of the transaction. If he would be a competent witness to testify as to the terms of the acceptance, and, consequently, an alteration thereof, in one particular, he would be competent to do so as to a change in any other particular, to make it conditional, or even to destroy its effect altogether.

Does or should the mere fact that, at the time of this transaction there was another person jointly interested with C. F. Robinson, and jointly bound by his acts, exempt Harris from the exclusion which the statute places upon him in a case where no third person would be so interested in or bound by the dealings of Robinson? The theory of the proviso to the statute is that where one of two persons whose mouths have been opened by its general provision to testify as to a transaction...