Certiorari to Court of Civil Appeals.
HALL, J.
The question for determination in this case is whether or not plaintiff in error is estopped to deny liability as surety upon a promissory note by his ratification of the forged signature of his name thereon.
The circuit judge, sitting without the intervention of a jury, rendered judgment against plaintiff in error upon the note, filing a written finding of facts upon the request of the parties as follows:
"This is a suit of the plaintiff Bank v. Dr. Charles P. Marsh, upon a note purporting to be executed July 18, 1923, due 90 days after date, signed by W. Bruce Berry, and Dr. Charles P. Marsh, as security, payable to State Bank & Trust Company, for $200. The suit is against Dr. Charles P. Marsh alone. A plea of non est factum was introduced on the trial of the case.
"The case originated before a justice of the peace, and is in this court by appeal. On the trial, having been requested to make a written finding of facts by both parties, the court finds the following facts:
"`W. Bruce Berry, the principal on the note, was a bookkeeper for Dr. Charles P. Marsh, the defendant, and had been sometime prior to the date of the note, July 18, 1923. He was not related to Dr. Marsh, but was related to the relatives of Dr. Marsh, and a friendly relation had existed between the two. He brought or sent to the State Bank & Trust Company the note in controversy, which purports to be signed by W. Bruce Berry, and Charles P. Marsh, as security.
"`The first question raised is as to whether or not Dr. Charles P. Marsh signed this note as security. The court finds that he did not sign such note as security, nor authorized any one to sign for him, and that he had no notice that the note had been executed until after the date of July 18, 1923.
"`Sometime after the execution of the note Dr. Marsh was informed that he was marked as security on a note in some amount to the bank. He put in a telephone call for the bank, but did not get the bank cashier upon his call. The bank also had heard the fact reported that Dr. Marsh was denying his signature on said note, and on September 7, 1923, the cashier of the bank, Mr. Woodard, had Dr. Marsh called over the telephone, and had a conversation with him about his signature to the note. In that conversation Dr. Marsh said that he did not sign said note, and had no knowledge of it, but he said to the cashier of the bank to let it alone, that he would O. K. it that time, that he would take care of it and see it paid. Thereupon the cashier of the bank took the note and wrote upon it words which now appear on said note, "Signature O. K.'d Charles P. Marsh, 9/7/23."
"`A few days later Dr. Marsh came into the bank and saw the cashier, and in that conversation he told him that, while he did not sign the note, still, let it alone — that he would take care of it and see that it was paid. The bank relied upon these conversations with Dr. Marsh, and after the note became due they did not sue immediately upon said note because Dr. Marsh was understood to be perfectly solvent. W. Bruce Berry was insolvent at the time of the execution of the note, and is at the present time.
"`He continued to live at Petersburg, in Lincoln county, until some time in February, 1924.
"`The bank notified Dr. Marsh frequently after the maturity of the note, and did not receive any response from him, but Dr. Marsh did endeavor to procure Berry to pay the note.
"`Suit was brought against Dr. Marsh after Berry left the county, and at the present time his whereabouts are unknown.
"`Suit was brought upon the ____ day of ____, 1924.
"`Upon these facts, the court is of the opinion that, while Dr. Marsh did not sign said note, he ratified said signature and is liable therefor. Judgment will be given against him for the amount of the note, interest, and attorney's fee.'"
Upon appeal by the plaintiff in error from the judgment rendered against him by the trial court to the Court of Appeals the judgment was affirmed. The case is now before this court upon the plaintiff in error's petition for the writ of certiorari and for review.
It is insisted by the plaintiff in error that there is no evidence to support the finding that he, in fact, ratified his forged signature to the note, or that he is estopped from denying his liability thereon.
A person whose name has been forged to a note may be estopped by his admission
on which others may have changed their relations, from pleading the truth of the truth of the matter to their detriment. 3 R. C. L. § 323, p. 1107; Robinson v. Barnett, 18 Fla. 602, 43 Am. Rep. 327; Lewis v. Hodapp, 14 Ind. App. 111, 42 N. E. 649, 56 Am. St. Rep. 295; First State Bank of Corwith v. Williams, 143 Iowa, 177, 121 N. W. 702, 23 L. R. A. (N. S.) 1234, 136 Am. St. Rep. 759; West Philadelphia National Bank v. Field, 143 Pa. 473, 22 A. 829, 24 Am. St. Rep. 562; 36 L. R. A. 541, note.
The question whether a forgery is capable of being ratified, so as to create a liability on the forged instrument, in the absence of circumstances constituting an estoppel in pais, is one on which there is much conflict among the authorities. The weight of authority, perhaps, has answered the question in the negative. 3 R. C. L. § 324, p. 1107; Barry v. Kirkland, 6 Ariz. 1, 52 P. 771, 40 L. R. A. 471, 2 Ann. Cas. 295; Henry v. Heeb, 114 Ind. 275, 16 N. E. 606, 5 Am. St. Rep. 613; Owsley v. Philips, 78 Ky. 517, 39 Am. Rep. 258; Workman v. Wright, 33 Ohio St. 405, 31 Am. Rep. 456; Shisler v. Vandike, 92 Pa. St. 447, 37 Am. Rep. 702; 12 L. R. A. 140, note, 36 L. R. A. 539, note.
Some of the courts holding to this view place the doctrine on grounds of public policy. Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 4 L. R. A. 196, 12 Am. St. Rep. 754; Shisler v. Vandike, supra. Others, on the ground...
