McDowell's Ex'r v. Crawford

• Decision Date: 14 August 1854
• Citation: 52 Va. 377
• Parties: MCDOWELL'S ex'or v. CRAWFORD.
• Court: Virginia Supreme Court

52 Va. 377

MCDOWELL'S ex'or v. CRAWFORD.

Supreme Court of Appeals of Virginia.

August 14, 1854

1. In an action of debt upon a bond for two thousand dollars purporting to be for money loaned, the issue is made up upon the plea of non est factum. On the trial the plaintiff introduces ten intelligent and credible witnesses well acquainted with the handwriting of the obligor, all of whom express a confident opinion that the signature to the bond is his. The defendant, to support his plea, introduces evidence of the circumstances of the obligor, the relations and conduct of the parties, and the ability of the plaintiff to lend the money. To rebut the evidence on the last ground the plaintiff who was a merchant, introduced a witness C, who had been his book keeper, who professed to speak from memoranda taken by him on a recent examination of the plaintiff's books; and he stated that the plaintiff had a large amount of cash-notes and accounts not known to the defendant's witnesses, and that he had the control of a large estate of S, of which he was the executor. When the cross examination of this witness, and the examination of witnesses to rebut his testimony, was ended, which was late in the evening, the defendant's counsel announced that they had no other witnesses to examine, but would on the next day introduce some documentary testimony. On the next day they offered in evidence the settled accounts of the plaintiff as executor of S, to show that he could not have from that source united with his own means, sufficient to enable him to make the loan. To this evidence the plaintiff objected, and the court excluded it; and in doing so remarked that the evidence previously introduced by the defendant without objection, as well as that then offered was too vague, remote and indefinite in its character, to sustain the plea of non est factum against such evidence of factum as the plaintiff had introduced and would have been excluded if objected to. The defendant then asked that the witness C might be recalled, and that they might be permitted to re-examine him, and test the accuracy of his statements, by requiring the production of the books, which were near and might be obtained in a few minutes. But the court refused to permit the witness to be recalled, or to require the books to be produced; because the evidence was irrelevant, and because the defendants had announced on the day before, that they had concluded the examination of witnesses. HELD:

1. The settlements of the plaintiff as executor of S were competent and relevant testimony, and should have been admitted.

2. That the comment of the court upon the evidence of the defendant, when excluding the settlements, was the expression of an opinion upon the weight of evidence calculated to mislead the jury, for which the verdict and judgment should be set aside, and a new trial awarded.

3. That the defendant should have been permitted under the circumstances, to recall the witness C; and to have the plaintiff's books produced.

2. A note of the defendant to the plaintiff, written and delivered some days before the trial, authorizing the plaintiff to introduce his books in evidence, if he will allow them to be examined by defendant's counsel previous to the trial, is not admissible evidence for any purpose.

This was an action of debt in the Circuit court of Augusta county, brought by Hugh John Crawford against the executor of John McDowell deceased. The action was founded upon a bond; and the plea was non est factum, upon which the issue was made up.

Upon the trial the plaintiff introduced in evidence a bond in the following terms:

" $ 2000. One day after date, I promise to pay or cause to be paid unto Hugh J. Crawford or order, two thousand dollars, for borrowed money, with legal interest from date; to which payment well and truly to be made, I bind myself, my heirs, administrators, executors, & c. Witness my hand and seal this the 18th day of March 1846.

In consequence of not giving to said Crawford, at this time, a trust deed to secure the above two thousand dollars, which would give publicity to this debt, and be prejudicial to my interest, I agree to execute to him a valid deed of trust upon all my real estate in Staunton, at the expiration of three years from date, for which time I am to have the use of the money, if I shouldfail to pay him, his heirs, & c. the above sum within thirty days after payment is demanded.

JOHN MCDOWELL. [ Seal. ]"

This bond was wholly in the handwriting of the plaintiff, except the signature; and there were two endorsements upon it, also in the handwriting of the plaintiff, of the receipt of the interest for 1847 and 1848. The plaintiff then introduced ten witnesses of intelligence, good character, and unquestioned and unquestionable credibility, consisting of clerks, lawyers, magistrates, merchants, a commissioner in chancery, and the family physician of the obligor, all of them familiar and well acquainted with the handwriting of the obligor, and whose acquaintance and intimacy varied with the different witnesses from twenty-five to forty years. These ten witnesses with one accord testified that they had been long and familiarly acquainted with the handwriting of John McDowell, from having seen him write, and from correspondence and business transactions with him. That they had carefully examined the signature to the bond in question, and they believed it to be the true and genuine signature of John McDowell. Several of these witnesses stated that the signature is written " " with a lighter pen" than the common signature of John McDowell, but that in the general character of the writing, and in the formation of the letters, it has every appearance of being genuine. The plaintiff also introduced two receipts in his own handwriting, corresponding with the endorsements on the bond, for the interest for the years 1847 and 1848, and also introduced the deposition of a sister of McDowell, who was one of his heirs at law and a legatee in his will, and the evidence of another witness, showing how and when the receipts were found in the house in which McDowell had lived and where he died.

The defendant, to support the issue on his part, without offering any opposing testimony as to the genuineness of the signature to the bond, proceeded, by cross examination of the plaintiff's witnesses, and by witnesses on his own part, to offer evidence tending to show:

1. That the existence of the bond in controversy had been concealed, during the life time of John McDowell, in a manner and under circumstances in themselves unnatural, and wholly inconsistent with the habits of McDowell, and with the interest of the plaintiff.

2. That the plaintiff had not the pecuniary ability to make a loan of the amount and character evidenced by the bond in controversy, and that he could not at the date of the bond have had such an amount of money for any purpose.

3. That from the social and business relations of the plaintiff and John McDowell, it was altogether improbable that such a transaction could have taken place between them.

4. That from the pecuniary circumstances and standing of John McDowell at the date of the bond, it is altogether improbable that any one would have loaned him such a sum of money without security.

5. That the transaction, as appearing on the face of the bond, was altogether inconsistent with the known circumstances, habits and character of the parties at the date of the bond; and that the subsequent conduct of both was inconsistent with the idea that such a contract had ever been made. That therefore, it was not the act and deed of John McDowell, either because it was not his genuine signature, notwithstanding the plaintiff's evidence of handwriting; or if genuine, it was obtained surreptitiously, fraudulently or otherwise, in such an illegal manner as to render the bond not his act and deed.

The evidence introduced by the defendant to sustain the foregoing conclusions is set out in the record, but need not be stated here.

To rebut the evidence of the defendant as to the pecuniary condition of the plaintiff at the date of the bond, he introduced a witness, William B. Crawford, who testified that he was, up to the ____ day of November 1845, book keeper for the plaintiff in his mercantile establishment; and that at that time plaintiff was in possession of a large amount of cash-notes and accounts, of his own property, which had not been known to any of the witnesses who testified as to his circumstances; and also that the plaintiff had the control of a large estate of John C. Sowers deceased, of which he was the executor. The witness professed to speak from memoranda taken upon a recent examination of the books kept by him in 1845.

To meet this new evidence of the plaintiff, the defendant offered evidence of book keepers expert in the business, to show that the books described by the witness could not have enabled him to state such results with any certainty.

It being late in the evening when this evidence was given and finished, defendant's counsel announced that they had no other witnesses to examine, but that next morning they would probably offer documentary evidence; and the court adjourned with the announcement that any such evidence, provided it could be shown to be relevant to the issue, would be received.

On the next day the defendant offered to introduce the settlements made by the plaintiff, of his accounts as executor of John C Sowers deceased, to show that at the date of the bond in controversy, the plaintiff could not have had funds of that estate in his hands sufficient of themselves or with his own means, to have enabled him to make such a loan as that shown by the bond; and also to show that the...