Joffre v. Mynatt

• Decision Date: 25 March 1922
• Docket Number: (No. 8642.)
• Citation: 240 S.W. 319
• Parties: JOFFRE v. MYNATT.
• Court: Texas Court of Appeals

Page 319

240 S.W. 319

JOFFRE v. MYNATT.

(No. 8642.)

Court of Civil Appeals of Texas. Dallas.

March 25, 1922.

Rehearing Denied April 22, 1922.

Appeal from District Court, Dallas County; Kenneth Force, Judge.

Suit by Mrs. Berelia Mynatt against Mrs. Fannie Joffre. Judgment for the plaintiff, and defendant appeals. Affirmed.

Clint, Eades & Eades, of Dallas, for appellant.

George K. Holland, of Dallas, for appellee.

VAUGHAN, J.

Appellee filed this suit against appellant on the 13th day of March, 1916, to recover on note in the principal sum of $1,250 payable to the order of W. C. Mynatt (now deceased), alleged to have been executed by appellant and her son, E. H. Joffre (now deceased) on the 17th day of February, 1914, and due one year and six months after date. E. H. Joffre was alleged to be dead and his estate insolvent.

Appellant in due form interposed a plea of non est factum denying that she signed the note in question.

This is a second appeal from a verdict and judgment rendered against appellant in the trial court for the full amount sued for. The former appeal resulted in the judgment of the trial court being reversed and cause remanded on the sole ground that the evidence was not sufficient to support the verdict. See Joffre v. Mynatt (Tex. Civ. App.) 206 S. W. 951.

The cause as presented by this appeal on the pleadings is practically the same as on first appeal, but on facts materially different, as additional evidence was introduced by both parties which will, as to appellee's evidence, be reflected in the discussion of the one assignment of error on which the disposition of this appeal is made to depend, viz.:

"The court erred in sustaining plaintiff's motion for judgment herein because the verdict and answer of the jury to the issue submitted to it is unsupported by and is contrary to the evidence adduced upon the trial of said cause, in that the plaintiff failed to prove that the defendant executed the note sued on, and the defendant by positive and uncontroverted evidence clearly showed that she did not sign or execute the note in question, and hence the verdict of the jury is unsupported by evidence and is contrary to and against the evidence and insufficient to support a judgment for the plaintiff, and therefore said judgment should be set aside and a new trial granted herein."

This challenges the sufficiency of the evidence to sustain the verdict and judgment.

The cause was submitted to the jury upon one special issue: "Did the defendant, Mrs. Fannie Joffre, sign the note in question?" This question was answered in the affirmative.

Following is all of the evidence supporting the verdict:

J. L. Croswait, witness for appellee, testified as follows:

"I have resided in Dallas seven years. I am assistant cashier at the Security National Bank. I have held such position nearly eleven years, right at eleven years, with the same bank all the time. I do not now have occasion to pass on signatures. It has been a year since I had occasion to do so. Up to that time I had been passing on signatures for about five or six years; I don't remember exactly. I passed on them all the time; all day long, that was my work. I have compared the signatures to the first amended supplemental answer filed herein by the defendant, Mrs. Fannie Joffre, in this case, which contains her admitted genuine signature, her first amended original answer in the same case, which contains her admitted signature, and also a note for $1,250, being the note in this case, payable to W. C. Mynatt 18 months after date, containing the signature of E. H. Joffre and the alleged signature of Mrs. Fannie Joffre, and the admitted signature to the second amended original answer of the defendant, Mrs. Fannie Joffre. From my comparison I couldn't state about the genuineness of the signature on the note, because I don't know which is the genuine signature of Mrs. Joffre. I would state that, if any one of these signatures are genuine, they are all genuine. In my opinion the same party that signed these instruments signed the note. Yes, sir; that is my opinion.

"There are differences in the signatures, but the characteristics are the same. There are differences in them. There might be some difference between the signature on the note and the other three; the letters might be closer together, but the characteristics are the same. I do not see on any of her signatures to the court papers a period after the word `Fannie.' There might be a period on the note, and it might not be a period. There is a mark there, but it is not a part of the signature, but there is something there; there is what purports to be a period after the word `Fannie' on the note, and there is nothing of the kind on the other papers that I have been testifying about. Lots of forgeries are committed on banks. I am not a teller in the bank; I have been assistant auditor for the past eleven years. The teller is not the money man, only on the items that he handles. The items that come through the teller's window are very small part of the items that come through the bank. The biggest part of the checks are paid through the collection department and the teller never sees them at all. We come in contact with lots of forgeries. We have paid forged checks. However expert a man may be, checks are sometimes drawn and signatures sometimes made which will deceive the bankers. I am not undertaking to tell the jury that this is not one of those cases. I said in my opinion the handwriting is the same, just as if I were passing on a check. I do not undertake to say that the party who signed the note signed the other document; I didn't see her sign them. I couldn't say that there is nothing certain and positive about expert testimony; whether there is or not.

"I have said that the signatures of the same person is not always exactly the same; they are frequently not the same. The general characteristics, however, of the signature are always the same; there are always characteristics which are the same. I am not attempting to say that these are exactly the same, but in my opinion the characteristics are the same.

"An expert forger sometimes does simulate the characteristics of the people who sign their names to checks, that bankers pass, but an expert forger can very seldom get the characteristics right. In point of fact they do get it right enough to pass through banks, very seldom. It is not a fact that you can sit down and put a piece of gauze over the name and get it exactly the same. You cannot get it exactly the same to save your life. It can't be done."

T. K. Cloverland, witness for appellee, testified as follows:

"I have lived in Dallas 2½ years. I came from Sherman to Dallas. I am in the banking business with the Central State Bank. I have been there 2 years and 3 months. I am head teller at the bank. My duties require me to pass on signatures every day. I have been doing that for 18 months in that bank, and 3 years at another bank in New Mexico. I have passed on signatures for about 4½ years. I have compared the signatures to the first amended answer of the defendant, Mrs. Joffre, in this suit, her first supplemental answer in this case, and her second amended original answer in the same suit, all of which contain her admitted genuine signatures, with the signature to a note for $1,250 dated February 17, 1914, payable to W. C. Mynatt, and signed by E. H. Joffre and alleged to have been signed by Mrs. Fannie Joffre. I would take it to be the same signatures. I would pay a check on that. They look to be the same signatures to me.

"My banks sometimes pays out — that is, the tellers pay out — money on forged checks; they make mistakes.

"I guess half a dozen forgeries occur in our bank in a year. We pass on a stack of checks that high in a year. The percentage of forgeries, compared with the number of checks passed on, is so small it would be hard to say. I say a half dozen checks a year. I see them all, and we have paid, I would not say for sure a half dozen checks a year, but approximately a half dozen checks a year, but I will say that 1,500 or 2,000 checks come in every day.

"I have paid out money on forged checks myself. I know as a matter of fact that there are not very many forged checks that come in; they are few. Where they do come in, I have paid them myself, and I have been there for years, and it is my business to know, but whether it is one thousand, or how many, I have paid forged checks, because I believed it was the genuine signature. I don't undertake to tell the jury that all those names were written by the same person; it is just my opinion."

Appellee testified that it was a part of the arrangement between W. C. Mynatt, her husband, and E. H. Joffre, one of the co-makers on the note sued on, that Mrs. Fannie Joffre, appellant, should execute the note with E. H. Joffre.

Appellant testified that she often helped her son in his business of buying and selling cattle, and that she actually signed the notes for her son E. H. Joffre in a transaction with Metzger Bros., in the year 1914, which was about the time the note involved in this suit was executed.

Mrs. Bert Pemberton, a daughter of appellant, after having testified that she was familiar with appellant's signature and that appellant's name to the note sued on was not her handwriting, was shown another instrument with the name of appellant written thereon and, in reference to same, testified:

"There are some things in this signature that I have never seen her put in her signature, but I would not say that it is not her signature. I would not say that it is and I would not say that it is not."

Mrs. Littlepage, another daughter of appellant, testified:

"I think my mother had considerable dealings with her son (referring to E. H. Joffre). She assisted him in a good many of his operations."

The note sued on was introduced in evidence, being as follows: Of date February 17, 1914, for the principal sum...