Klein v. York

• Decision Date: 19 January 1924
• Citation: 257 S.W. 861,149 Tenn. 81
• Parties: KLEIN ET AL. v. YORK.
• Court: Tennessee Supreme Court

257 S.W. 861

149 Tenn. 81

KLEIN ET AL. v. YORK.

Supreme Court of Tennessee.

January 19, 1924

Certiorari to Court of Civil Appeals.

In the matter of the estate of W. J. Klein, deceased. Bruce York filed a claim, which was opposed by Melville Klein and others. Judgment disallowing the claim was reversed, and the cause remanded by the Court of Civil Appeals, and objectors bring certiorari. Affirmed and remanded.

Raymond O. Valley, of Memphis, for plaintiffs.

Walter Chandler, of Memphis, for defendant.

MALONE Special Judge.

This case comes before the court upon petition for certiorari.

The respondent, Bruce York, filed a claim against the estate of W. J. Klein, deceased, in the probate court of Shelby county in the principal sum of $675, basing his claim upon a note which had become lost. He filed a copy of the note with his claim. The claim having been allowed, the petitioners here beneficiaries of the estate of the said W. J. Klein, appealed the case to the circuit court, where the same was tried before a jury, under a plea of non est factum interposed by the administratrix of the estate. After certain evidence including the evidence of the respondent York, had been heard, the trial judge instructed the jury to bring in a verdict disallowing the claim, which was accordingly done.

York, the plaintiff below, appealed the case to the Court of Civil Appeals, which court, in an opinion by Mr. Justice Clark, reversed and remanded the case.

The question earnestly and ably debated here is this:

Could York, the claimant and plaintiff below, be allowed to testify that he had had in his possession a note in the handwriting of the decedent, and bearing the genuine signature of the decedent, proving the amount and terms of the note by other witnesses?

On behalf of the petitioners it is claimed that to permit such action is to permit an evasion of the Tennessee statute (Shannon's Compilation, § 5598), which provides:

"In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party. (1869-70, c. 78, § 2.)"

On behalf of the respondent it is insisted that proving the signature of a note was not proving a transaction, or conversation with, or statement by, the decedent within the meaning of this act.

The trial judge adopted the view of the petitioners, and the Court of Civil Appeals accepted the view of the respondent.

As the case was decided below on a directed verdict, it becomes necessary to review the facts, taking that view of the evidence most favorable to the contentions of the plaintiff below, against whom the verdict was directed. Wildman Mfg. Co. v. Davenport Hosiery Mills (1922) 147 Tenn. 551, 249 S.W. 984.

The plaintiff below, Bruce York, was allowed to state that he was acquainted with the decedent; that he had several business transactions with him; that he had a transaction involving a note; that the note was not in his possession; that he borrowed money from Dr. Graham, and put up this note as collateral; that Dr. Graham claimed to have given the note back to plaintiff, but if he did plaintiff could not find it and did not know what had become of it, after diligent search; that the note while in the possession of Dr. Graham became due, was not paid, and was protested; that he had a certified copy of the protest by the notary public. and filed the same as an exhibit.

He further testified as follows:

"Q. I believe you stated you had several different transactions with the deceased?

A. Yes, sir.

Q. I will ask you if you are acquainted with the handwriting of the deceased?

A. Yes, sir.

Q. I will ask you if the handwriting and the signature of this note that you had in your possession was in the handwriting of the deceased?

A. Yes, sir."

All of this testimony was objected to by the administratrix, on the ground that it was testimony relating to a transaction with a deceased person, and was incompetent under the statute already mentioned.

While this objection was being argued, and before the court ruled on the admissibility of the testimony, two other witnesses for plaintiff appeared in court, and for their convenience they were then examined.

The first of these witnesses, George B. Coleman, testified that he was called by the National City Bank to protest a note; that he went to the bank and was given a note signed by W. J. Klein, the decedent, indorsed by Dr. Frank Graham and by Bruce York, payable at the First National Bank; that he presented the note to the First National Bank which declined to pay it; that he thereupon, as a notary public, protested the note for nonpayment, his certificate of protest containing a verbatim copy of the note, which was read into the record as follows:

"$675.00. Memphis, Tenn. March 23rd, 1920.

Eight months after date I promise to pay to the order of Bruce York six hundred and seventy-five ($675.00) dollars with interest at the rate of 8% from date until paid. For value received, and all attorney's fees and other costs and charges incurred in the collection of this note. Payable First National Bank, Memphis, Tennessee.

[Signed] W. J. Klein.

Pay to Dr. Frank Graham.

Bruce York."

The witness identified this copy as an accurate copy in every detail of the note which he protested, and filed as an exhibit to his testimony a duplicate carbon copy of the certificate of protest.

The other witness, Dr. Frank Graham, testified that he loaned Bruce York some money, and took as collateral security a note for "600 some odd dollars that was signed by Mr. Klein"; that the copy handed him was, according to his recollection, a copy of the note which Mr. York gave him as collateral security; that the note fell due while in the possession of witness, and was not paid, and witness had the National City Bank protest the same for nonpayment; that as a result of certain transactions stated in detail he treated the loan as paid, and returned to York the Klein note which had been put up as collateral; that he had not seen this note since he gave it to Mr. York; that he loaned the money to York between November and December, 1920, as he recollected; that he does not recall paying any particular attention to the signature of the note, but does recall the fact that the note was signed by a man who owned his farm at that time, and witness believed this would make the note perfectly good.

The court then ruled on the objection to plaintiff's testimony, saying:

"In this case, it is sought to show, if the court understands aright, that the plaintiff may testify as to whether he knew the handwriting of the deceased and whether the signature on the note is in the handwriting of the deceased. The court holds that the signature on the note is a part of the transaction and part of the matter in contest between them and that it is incompetent for the plaintiff, an interested party, to testify that the signature on the note is in the handwriting of the deceased, W. J. Klein."

At the end of this testimony the plaintiff rested, and counsel for the administratrix made a motion for a directed verdict, whereupon the court granted the motion and instructed the jury that "under a rule of law, there can be no recovery in this suit now under the evidence adduced in this case relative to the note."

In his motion for a new trial the plaintiff York specified, among other grounds, the following:

(a) "That the court was in error in refusing to allow the following testimony of plaintiff, Bruce York, to go to the jury:

Q. 'I will ask you if the handwriting and the signature of this note that you had in your possession was in the handwriting of the deceased?'

A. 'Yes, sir.' "

(b) That the court was in error in directing a verdict for defendants under the testimony adduced.

It seems to be conceded in the briefs of both parties that the determinative question is the competency or incompetency of the plaintiff's evidence already quoted, as to the handwriting and signature of the note.

There are two conflicting lines of cases on this question.

The petitioners cite and rely upon the cases of Neely v. Carter, 96 Ga. 197, 23 S.E. 313; Holliday v. McKinne, 22 Fla. 153; Ware v. Burch, 148 Ala. 529, 42 So. 562, 12 Ann. Cas. 669; Kirksey v. Kirksey, 41 Ala. 626; Merritt v. Straw, 6 Ind. App. 360, 33 N.E. 657.

They also rely upon the reasoning of this court in the cases of Mason v. Spurlock, 4 Baxt. 554; Montague v. Thomason, 91 Tenn. 168, 18 S.W. 264; Roy v. Sanford, 140 Tenn. 382, 204 S.W. 1159.

The respondent here, plaintiff below, in support of the judgment of the Court of Civil Appeals, insists that the question is decided by our own cases of Minnis v. Abrams (1900) 105 Tenn. 662, 58 S.W. 645, 80 Am. St. Rep. 913, and Royston v. McCulley (1900; Tenn.) 59 S.W. 725, 52 L. R. A. 899.

And he further contends that the clear weight of authority supports this view as to competency of this evidence, citing 30 A. & E. Enc. Law (2d Ed.) 1033; Sankey v. Cook (1891) 82 Iowa, 125, 47 N.W. 1077. In re Brown's Estate, 92 Iowa, 379; 60 N.W. 659; Ferrebee v. Pritchard, 112 N.C. 83, 16 S.E. 903; Rush v. Steed, 91 N.C 226; In re La Grange Estate (March, 1921), 191 Iowa, 963, 181 N.W. 807; Britt v. Hall, 116 Iowa, 564, 90 N.W. 340; Bryan v. Palmer (1910) 83 Kan. 298, 111 P. 443, 21 Ann. Cas. 1214; Dillon v. Gray (1912) 87 Kan. 129, 123 P. 878; Munger v. Myers (1915) 96 Kan. 745, 153 P. 497; Fitch v. Martin (1909) 84 Neb. 745, 122 N.W. 51; Peoples v. Maxwell, 64 N.C. 313; Halyburton v. Dobson, 65 N.C. 88; Ballard v....