J. B. Dinsmore & Co. v. Stimbert

• Decision Date: 05 April 1882
• Citation: 11 N.W. 872,12 Neb. 433
• Parties: J. B. DINSMORE & CO., PLAINTIFFS IN ERROR, v. BENJAMIN STIMBERT, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

11 N.W. 872

12 Neb. 433

J. B. DINSMORE & CO., PLAINTIFFS IN ERROR, v. BENJAMIN STIMBERT, DEFENDANT IN ERROR

Supreme Court of Nebraska

April 5, 1882

THIS was an action on a promissory note for $ 90.00, dated Sept 29, 1879, and payable six months after date, to the order of Laird & Dezendorf. The note came into the hands of plaintiffs, who alleged that it was bought by them in good faith, for a valuable consideration, and without notice of any failure in consideration or defect. On trial before WEAVER, J., and a jury, in the district court for Clay county, verdict and judgment were for defendant, and plaintiffs brought the cause here for review on a petition in error.

REVERSED AND REMANDED.

Hastings & McGintie, and Stone & Stone, for plaintiffs in error, cited 1 Daniels on Neg. Inst., 699. Ross v. Doland, 29 Ohio St. 473. Selser v. Brock, 3 Ohio St. 302. Douglas v. Matting, 29 Iowa 498. Nebeker v Cutsinger, 48 Ind. 436. Shirts v. Overjohn, 60 Mo. 305. Frederick v. Clemens, Id., 313. Citizens Nat'l Bank v. Smith, 55 N.H. 593. Kimble v. Christie, 55 Ind. 140. Smith v Columbus Bank, 9 Neb. 31. Story on Promissory Notes, sec. 191. Story on Bills, 188. Bassett v. Avery, 15 Ohio St. 299. Edwards on Bills and Notes, 312.

John D. Hayes, for defendant in error, cited Gibbs v. Linaburg, 22 Mich. 479. Walker v. Egbert, 29 Wis. 194. Taylor v. Atchinson, 54 Ill. 196. Cline v. Guthrie, 42 Ind. 227. Abbott v. Rose, 62 Me. 194. Griffiths v. Kellogg, 39 Wis. 290. Briggs v. Ewart, 51 Mo. 245. Brown v. Reid, 79 Pa. 370. Puffer v. Smith, 57 Ill. 527. Van Brunt v. Singley, 85 Ill. 281. 1 Daniels Neg. Inst., sec. 849.

OPINION

COBB, J.

The answer of the defendant in the court below is altogether indefinite and uncertain. He first alleges that he never signed the note, and that the signature thereto is not genuine. He then alleges, that if he did sign the note, or the signature thereto is genuine, then, that it was procured through the "fraud and circumvention of either Laird or Dezendorf or both of them, in some way or manner unknown to the defendant in the transaction and negotiation by the defendant had with the said Laird and Dezendorf in and about the appointment of the defendant, as agent, to sell a certain patent fence post, without any fault or negligence on the part of the defendant. That the only paper that he ever signed with the said parties, or either of them, was a contract represented by said Laird and Dezendorf to have been a contract, whereby said defendant was to be constituted the agent of said Laird and Dezendorf for the sale of a patent fence post, and that when he signed said paper he believed the representations to be true, and relied upon the representations of the said Laird and Dezendorf as being true, and was compelled to rely upon said representations, because there was no person in the immediate vicinity upon whom he could call to read the same," etc.

The answer in Douglass v. Matting, 29 Iowa 498, cited by plaintiff in error, is substantially the same as this, and that was held by the supreme court of that state to substantially admit the execution of the note. And such must be true of the pleading under consideration. The defendant in the court below must be held to know his own signature. If the signature to the note was not his, then it was simply a case of forgery, and all of his pleading and testimony in regard to the representations of Laird & Dezendorf, his own inability to readily read English, etc., become immaterial.

We think the court below erred in submitting the question: "Did the defendant sign the note sued on?" for a special finding, and thereby placing prominently before the jury a question, which, as we have seen, must be regarded as admitted by the answer. And we think it altogether possible that their general finding was controlled by this special one.

The court below on the trial instructed the jury as follows:

1. If you shall find from the evidence, that the defendant signed the note sued on, and that Grimes & Dinsmore bought the note before due, for a valuable consideration, in the usual course of business, in good faith, and without any notice of any defense existing to said note, then you will find for the plaintiffs for the amount now due on the note, according to its terms.

2. Unless you shall find from the evidence that the defendant, without fault on his part, was procured to sign said note, and that said defendant was unable to read said note, and did not understand the contents thereof, but, under the false representations of the parties who took the note, fully believed the paper signed to be of a different character and not a note, and that there was no consideration for said note--I say, if you shall find from the evidence that the defendant signed the note, you may find for the defendant.

3. If you find that the defendant received no consideration therefor, and that the defendant signed the same upon a false and fraudulent representation of the parties who took the same, fully believing he was signing a paper of a different character--that is, if you further find that the defendant, before signing said note, used the diligence and care that a man of ordinary care and prudence would have used under similar circumstances, to ascertain its contents, and was without fault.

4. If the note was not signed by the defendant, your verdict will be for the defendant.

Except in one particular, but little fault can be found with the substance of these instructions, and that they treat it as an open and prominent question, whether the defendant did in fact sign the note. Yet we think that they are constructed in such a way that the jury might, and probably did, misunderstand their import and bearing. The true question was whether the defendant was tricked into signing the note by the artifice, device, and deception, or false reading, of the parties to whom he gave the note, or whether he was overcome by the glib tongue, winning manners, and over persuasion of these men, and thus thrown off his guard, and acted without the use of due diligence in ascertaining the true nature and character of the paper which he signed.

The leading case of Putnam v. Sullivan, 4 Mass. 45 arose upon facts as follows: The defendants were merchants of Boston, one of them being absent in Europe, and the other, having occasion to make a journey to Philadelphia, entrusted...