Lebcher v. Lambert

• Decision Date: 10 December 1900
• Citation: 23 Utah 1,63 P. 628
• Court: Utah Supreme Court
• Parties: LUCINDA A. LEBCHER, Appellant, v. GEORGE C. LAMBERT, Respondent

63 P. 628

23 Utah 1

LUCINDA A. LEBCHER, Appellant, v. GEORGE C. LAMBERT, Respondent

Supreme Court of Utah

December 10, 1900

Appeal from the Third District Court, Salt Lake County.-- Hon. A. G. Norrell, Judge.

Action upon a promissory note. From a judgment for defendant plaintiff appealed.

AFFIRMED.

Richard B. Shepard, Esq., and Allen T. Sanford, Esq., for appellant.

The court erred in allowing certain witnesses, for the defense to give expert testimony by comparing the signature of David Lebcher, on the back of the note in question, with certain unproven signatures attached to letters purported (not proven or admitted) to have been written or signed by David Lebcher.

The true rule, as laid down by Mr. Rogers in his work on Expert Testimony (1 Ed.), section 142, is: "That the proof of the genuineness of the instrument offered (for comparison) must be positive. It should be proved either by the admission of the party, when the standard is not offered by himself, or else by the testimony of persons who testify directly and positively to having seen the party write the paper." Pavey v. Pavey, 30 Ohio St. 600; Calkins v State, 14 O. St. 222, 228; Bragg v. Calwell, 19 Ohio St. 412; Eborn v. Templeman, 47 Texas 503, 518 Martin v. Maquire, 7 Gray (Mass.) 177; Baker v. Haines, 6 Whar. (Pa.) 291; Dupue v. Place, 7 Penn. St. 429.

The verdict of the jury was contrary to the law and the evidence.

Possession of a promissory note is prima facie evidence of ownership. Our own court has passed upon this question, and in so doing adopted our view of the case. Voorhees v. Fisher, 9 Utah 303; Johnston v. Meaghr, 14 Utah 427; Commissioner v. Clark, 94 U.S. 278; Bank v. Burgwyn (N.C.), 17 Lawyers Repts. Anno., 326; Anno. case; Battles v. Landenslager, 84 Pa. St. 446; Murray v. Lardner, 2 Wall. 110; Bank v. Crow, 60 N.Y. 85; Goodman v. Harvey, 4 Adol & E. 870; Bank v. Chapin, 8 Metc. (Mass.) 40; Miller v. Ottaway, 81 Mich. 196; 45 N.W. 665; Burrough v. Moss, 10 Barn. & C. 558; Adams v. Smith, 35 Me. 324; Daniels on Neg. Instruments (3 Ed.), sec. 573; Eggan v. Briggs, 23 Kas. 710; 1 Greenleaf on Evidence, sec. 34; 2 Rice on Evidence, 1124.

Possession of a note, whether obtained before or after maturity, is prima facie evidence of ownership. The averment of a valuable consideration for the transfer to the plaintiff is generally immaterial. The transfer, with or without value, confers upon the holder the right of action; and a consideration need not be proved, unless a defense is interposed which would otherwise preclude a recovery. McCann v. Lewis, 9 Cal. 246; James v. Chalmers, 5 Sand. (N.Y.) 52; James v. Chalmers, 2 Seld. (N.Y.App.) 209; Wicks v. Adirondack Co., 4 Thompson & Cook (N.Y.S. C.) 250; Seeley v. Engell, 17 Barb. (N.Y.S. C.) 530.

John M. Cannon, Esq., and Barlow Ferguson, Esq., for respondent.

After proving the signature of David Lebcher on the contract by two witnesses, and proving the signature on letters introduced by two witnesses as herein set forth (without objection or exception by plaintiff or her counsel), expert witnesses were properly permitted to testify and compare the writings on the note, contract and letters. State v. Thompson, 80 Me. 194; 6 Am. St. Rep., 172, which cites many authorities in point; Tucker v. Kellog et al., 8 Utah 11, 28 P. 870, and authorities cited; Durness v. Sowden, 5 Utah 216, 14 P. 333; see also Moore v. U.S. 91 U.S. 270, and to the same effect; Bank v. Root Metc. (Mass.) 523; Tuttle v. Rainey, 98 N.C. 513, 4 S.E. 475.

Under the rule adopted and followed by the Supreme Court of the United States, the court did not err in permitting witnesses for the defense to testify to the signature upon the contract and the letters marked for identification 1 to 13, and 15 to 17, inclusive, and compare them with the signature on the back of the note, especially where there is no objection to such ruling by plaintiff or her counsel. The same ruling has been made by the Supreme Court of this State. Durnell v. Sowden, 5 Utah 216, 14 P. Rep. 334; Tucker v. Kellogg et al., 8 Utah 11, 28 P. Rep. 879.

It is the established rule in many states that the genuineness of the disputed signature may be proved by comparison with other signatures on other instruments in writing, admitted or proved to be genuine. Holmberg v. Jensen, 25 P. 575 (Kan.) , 576; Ort v. Fowler, 31 Kan. 478, 2 P. 580; Wordman v. Dana, 52 Me. 9; State v. Hastings, 53 N.H. 452; State v. Wand, 39 Vt. 225; Tyler v. Todd, 36 Conn. 218; Koons v. State, 36 Ohio St. 195; Rhodes v. Sexton, 33 Iowa 340.

While the rule is as stated by plaintiff's counsel, that possession is prima facie evidence of ownership, it must be remembered that not only delivery, but indorsement is necessary to constitute the holder a purchaser in the ordinary course of business or a bona fide holder. Randolph on Commercial Paper, p. 678; 1 Daniel, 731; 1 Edwards, sec. 519; Mills v. Porter, 5 T. & C. 63; Losse v. Bissell, 76 Penn. St. 459; Gibsen v. Muller, 29 Mich. 355; Bilderbach v. McConnell, 48 Mich. 345; Allum v. Perry, 68 Me. 232; Boody v. Bartlett, 42 N.H. 558; Sturges v. Miller, 80 Ill. 241.

Such, if it could be called error, is not a reversible error. This court has already decided that "there was no exception on referring to the objectionable matter taken at the time of its rendition, this court will not review such on appeal;" and also, "that where the court states objectionable matter in its charge to the jury, in order to avail the appellant on appeal an exception must be taken at the time of its rendition to the specific matter which is the subject of complaint, so that the judge's attention may be called to it, and an opportunity offered him to make a correction." This rule is so well settled that it requires no citation of authority. Thirkfield v. Cemetery Association, 12 Utah 76, 79; Barborn v. Flick, 59 P. 122.

McCARTY, District Judge, delivered the opinion of the court. Bartch, C. J., and Baskin, J., concur.

OPINION

McCARTY, District Judge

STATEMENT OF FACTS.

This is an action to recover on a promissory note executed and delivered by respondent, George C. Lambert to David Lebcher. The note reads as follows:

"$ 600.00 Salt Lake City, Utah, May 11, 1892.

"Two years after date, for value received, I promise to pay to David Lebcher, or order, six hundred dollars, negotiable and payable at Salt Lake City, Utah, without defalcation or discount, with six per cent interest per annum from date thereof until paid, both before and after judgment, interest payable at maturity.

"GEORGE C. LAMBERT."

David Lebcher (payee) died on the twenty-eighth day of March, 1895, at Akron, Ohio, where plaintiff at the time resided and continued to reside up to the time of the commencement of this action. Defendant Lambert refused to pay the note and Lucinda Lebcher, widow of decedent Lebcher (payee) and only heir to his estate, brought suit in the district court in and for Salt Lake County, Utah, on the eleventh day of July, 1895, to recover from defendant the principal of said note and interest thereon claiming to be the legal owner of the note for a valuable consideration. Lambert answered admitting the execution of the note but denied that the same had been duly transferred to plaintiff, Lucinda Lebcher, or that she was the legal holder and owner of the note; also denied that the note was sold or transferred or indorsed to plaintiff by the owner thereof before maturity, or at any other time, or that the plaintiff was a bona fide owner for value.

Defendant further answered plaintiff's complaint, and in substance, alleged: That in consideration of the execution and delivery of said note by George C. Lambert to said David Lebcher, he, the said Lebcher, undertook to and agreed to plant seven acres of grapevines in good condition and insure the growth of said vines. That said David Lebcher planted said vines in the spring of 1892 and that said vines never grew, having been in bad condition at the time of planting, and having been planted a month later than they should have been. That David Lebcher promised to but failed to replant said vines. That defendant, in addition to the loss of said vines, lost the use of the land upon which they were planted for a period of three years. That therefore defendant received no consideration for said note, and that there was no other or further consideration for the same.

Plaintiff introduced in evidence the note which purported to be indorsed in blank by David Lebcher, and rested.

Several witnesses for defendant testified that they were familiar with the signature of David Lebcher and that the indorsement on the note in question was not made by Lebcher. Other witnesses, some of whom were skilled accountants and had had much experience in the comparison of signatures, examined the indorsement on the note and compared it with the signatures to certain letters and documents purported to have been written by David Lebcher, one of which was admitted to be his signature, and testified that in their judgment the signature on the back of the note and those to the letters and documents were not made by the same person. One witness, an expert, testified for plaintiff that in his judgment the indorsement on the note and the signature to the letters and documents referred to were made by the same person. There is evidence in the record showing that nearly two years after plaintiff claims to have purchased the note, it was still in the possession of and owned by David Lebcher, the payee. Defendant, all through the trial, persistently offered evidence to prove failure of consideration; also offered in evidence the following letter written to the defendant by C. Weirick, who at the time, was the agent of the appellant (plaintiff below):

"...