Henry v. Heeb
| Decision Date | 11 April 1888 |
| Docket Number | 13,204 |
| Citation | 16 N.E. 606,114 Ind. 275 |
| Parties | Henry et al. v. Heeb |
| Court | Indiana Supreme Court |
From the Fayette Circuit Court.
Judgment affirmed, with costs.
R Conner, H. L. Frost and J. I. Little, for appellants.
J. F McKee and D. W. McKee, for appellee.
This was a suit by Nicholas Heeb against Henry Heeb, John F Schonert and James D. Henry to recover the amount of two promissory notes signed by Heeb & Schonert, who were partners, as principals, and by James D. Henry as surety.
The controversy is between the plaintiff and the appellant Henry, and relates exclusively to the note described in the second paragraph of the complaint, the execution of which Henry denied under oath. To the denial of the latter, the plaintiff replied, in substance, that the defendant, after having obtained full knowledge that the plaintiff held the note in controversy, ratified and confirmed the same, and promised to pay it, and accepted a chattel mortgage covering the partnership property of Heeb & Schonert, the principal debtors, as indemnity against any liability which might exist on account of his having become surety on the note. This was held to be a sufficient reply.
While there was much evidence tending to prove that the signature of Henry, as it appeared on the note, was his genuine signature, there was also evidence tending to prove that it was not genuine. The extent to which the evidence went in that regard was to affirm the genuineness of the signature on the one hand, and to deny it on the other. There was no evidence tending to incriminate any particular person, or directly pointing to any one as having perpetrated the crime of forgery in respect to the appellant's signature. Besides, there was evidence which tended to show that one of the principal makers of the note had, with the appellant's consent, filled out blank notes, which had been previously signed by the latter as surety, and upon which the firm subsequently obtained loans of money.
The appellant testified that he neither signed, nor authorized any one to sign, his name to the note, "to the best of his knowledge."
There was some evidence tending to show that Henry recognized the validity of the note, and his liability to pay it, and that he had knowledge of the execution of a chattel mortgage by Schonert in the firm name to secure him and other creditors of the firm, and that the note in suit was one of the claims mentioned in the mortgage as having been signed by Henry as surety for Heeb & Schonert.
Relevant to the issue made by the plea of non est factum, and the reply thereto, and to the evidence pertaining to that feature of the case, the court instructed the jury, in substance, that if the appellant, after having obtained full knowledge upon the subject of whether or not he executed the note, ratified and confirmed the same, and promised to pay it, he would be liable for the amount thereof. The judgment was favorable to the plaintiff below. The ruling on the demurrer to the reply, and the giving the above instruction are complained of as causes for a reversal of the judgment. The reply and the instruction present substantially the same question.
It does not appear that the promise of the appellant induced the plaintiff to change his position in any manner, or that in reliance thereon he surrendered any right or benefit whatever. There is, therefore, no element of estoppel in the case as presented either in the pleading or in the instruction of the court.
The appellant contends that a person whose name has been forged to a note can not ratify or adopt the criminal act, so as to become bound, unless facts have intervened which create an estoppel and preclude him from setting up as a defence that his signature is not genuine. There appears to be an irreconcilable conflict in the decisions of the courts of last resort on this question. Thus, in Wellington v. Jackson, 121 Mass. 157, the Supreme Judicial Court of Massachusetts, following its earlier decisions, held that one whose signature had been forged to a promissory note, who yet, with knowledge of all the circumstances, and intending to be bound by it, acknowledged the signature, and thus assumed the note as his own, was bound to the same extent as if the note had been signed by him originally, without regard to whether or not his acknowledgment amounted to an estoppel in pais. Greenfield Bank v. Crafts, 4 Allen, 447; Bartlett v. Tucker, 104 Mass. 336 (341). To the same effect is Hefner v. Vandolah, 62 Ill. 483 (14 Am. R. 106); Fitzpatrick v. School Commissioners, 7 Humph. 224.
There are other cases which, while seeming to lend support to the doctrine that a forged signature may be ratified, nevertheless turn upon the proposition that the holder of the note had in some way acted in reliance upon the promise or admission of the person whose name appeared on the note, or that the latter had received or participated in the consideration for which the note had been given, and was therefore estopped to deny the genuineness of his signature. Still other decisions depend upon principles which distinguish them from cases involving the doctrine of ratification or adoption of forged instruments purely. Casco Bank v. Keene, 53 Me. 103; Forsyth v. Day, 46 Me. 176; Corser v. Paul, 41 N.H. 24; Woodruff v. Munroe, 33 Md. 146; Union Bank v. Middlebrook, 33 Conn. 95; Livings v. Wiler, 32 Ill. 387; Commercial Bank v. Warren, 15 N.Y. 577; Crout v. DeWolf, 1 R.I. 393; McKenzie v. British Linen Co., L. R. 6 App. Cas. 82; Forsythe v. Bonta, 68 Ky. 547, 5 Bush 547.
It is a well established rule of law that if one, not assuming to act for himself, does an act for or in the name of another upon an assumption of authority to act as the agent of the latter even though without any precedent authority whatever, if the person in whose name the act was performed subsequently ratifies or adopts what has been so done, the ratification relates back and supplies original authority to do the act. In such a case the principal is bound to the same extent as...
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