Moore v. Palmer

• Decision Date: 29 February 1896
• Citation: 14 Wash. 134,44 P. 142
• Parties: MOORE v. PALMER ET AL.
• Court: Washington Supreme Court

44 P. 142

14 Wash. 134

MOORE v. PALMER ET AL.

Supreme Court of Washington

February 29, 1896

Appeal from superior court, King county; T. J. Humes, Judge.

Action by Watson W. Moore against A. L. Palmer and another executors of the estate of J. Gardner Kenyon, deceased, on a promissory note. Judgment for defendants, and plaintiff appeals. Affirmed.

Dunbar J., dissenting.

Robinson & Rowell and S. H. Piles, for appellant.

Struve Allen, Hughes & McMicken, for respondents.

GORDON J.

Respondents, Palmer and Pontius, are executors of the estate of J. Gardner Kenyon, who died on December 22, 1892. This action was brought by the appellant to recover of respondents, as such executors, upon a promissory note which the complaint alleges was executed by the said J. Gardner Kenyon in his lifetime, in the sum of $20,000, bearing date December 23, 1889, payable four years thereafter, together with interest at 10 per cent. per annum. The respondents answered, denying the making of the note, alleging it to be a forgery, and further alleging that if the signature to the note was the signature of Kenyon, the same had been procured by some trick or device, and without knowledge on his part as to its character. There was a verdict for the respondents, and from the judgment entered thereon the case is here on appeal.

1. It appears that after issue was joined the respondents filed with the court certain interrogatories to be propounded to the appellant for the discovery of facts alleged to be material to the defense of the action; that thereafter the appellant moved the court to strike the interrogatories from the files, for various reasons, which motion was denied by the court. Subsequently the appellant made full answer to the interrogatories so propounded. It is urged in this court that the refusal to strike was error, but we think otherwise, and it would be harmless, if error at all.

2. At the trial the appellant offered said interrogatories and answers as evidence in his own behalf, and they were excluded upon the objection of respondents. This is also assigned as error. The purpose of the statute was to enable the party to obtain from his opponent a disclosure "of facts and documents material to the support or defense of the action." 2 Hill's Code, § 1661. And, when the answers are so made and returned, they do not constitute a part of the pleadings. Neither do they become evidence for the party so answering, unless they are offered by the adverse party, who is also permitted by statute to rebut them by adverse testimony. 2 Hill's Code, § 1664. In framing the answers to interrogatories under the statute, the party so interrogated is entitled to the advantage and assistance of counsel, and is allowed 20 days in which to make such answers. The statute does not, in the case of a deposition, permit the same to be read at the trial, if the witness is present and can take the stand; and so, in this case, we think that, if the matters embraced in the interrogatories were relevant and material to the issue, the appellant should have taken the stand as a witness, and given his testimony before the jury. But it is urged that such a course would have been farcical, inasmuch as, by section 1646 of the statute (2 Hill's Code), a party in interest or to the record shall not be admitted to testify in his own behalf as to any transaction had by him or any statement made to him by a deceased person; and counsel insists that the "executors had not the right, even had they so desired, to waive this statutory provision." We find it difficult to reconcile these contentions of counsel. In the first place, it is insisted that the interrogatories and answers became testimony; and, in the next breath, it is urged that it would have been useless to have called appellant as witness, because under section 1646, supra, in an action or proceeding against an executor, a party in interest or to the record is not permitted to testify, etc., and that this provision is mandatory, and cannot be waived. It would seem that this latter contention, if upheld, would exclude these answers as testimony, if they related to "any transaction had by him with, or any statement made to him by, such deceased." Nothing contained in section 1646 prevented his being examined at the trial as an ordinary witness upon all matters excepting transactions and statements had with the deceased; and if the matters embraced within the answers related to subjects concerning which the law, from considerations of public policy, would have prevented the appellant from testifying at the trial, it would seem to require no argument to demonstrate that like consideration demanded that the answers should be excluded. These respondents, as executors, were entitled to possess themselves of every means to enable them and their counsel to intelligently conduct the defense of the action, and it would seem unwise to hold that they might not take these answers for their guidance, except at the peril of the answers becoming evidence. None of the cases cited by the appellant are authority for such answers being received as evidence under the circumstances of this case. Rice v. Motley, 24 Hun. 144, presented a very different state of facts. In that case "each party procured the examination of his adversary before the trial. Before the trial, Motley died, and the action was continued in the name of his executors. At the trial, Thomas W. Rice was living, and was a witness in his own behalf. He could not then testify to any personal transaction with Motley, under section 829 of the Code of Civil Procedure. He then offered in evidence his own examination taken at the instance of Motley, and when both were living, and this was rejected." And the court held that the rule was error; saying that the "reason of the rule excluding such testimony is wanting. When the deposition was taken, Motley was alive to cross-examine and to give testimony in his own behalf in opposition to that of the plaintiff." We think that the ruling complained of was right, and what was said by this court in Denny v. Sayward,

10 Wash. 422, 39 P. 119, is inapplicable to the present case.

3. On the trial the court admitted, as standards for comparison, certain bank checks and other writings containing the signatures of Kenyon, the genuineness of which signatures is in no wise disputed or denied by the appellant; and experts were called, and permitted to institute comparisons between such genuine signatures and the signature to the note in question. The appellant insists that this was error, contending for the rule that no writing can be used as a standard of comparison in the case unless it has been previously admitted for some other purpose, and in support of this rule many cases are cited by the learned counsel. But policy and necessity have led to the modification of this rule, so that to-day, in a great many of the states of this country, and by act of parliament in England, it is, in substance, provided that, "upon the question as to the genuineness of a signature, the genuine signature of the same person to a paper not otherwise competent evidence in the case is admissible to enable the court and jury, by a comparison of the hands, to determine the question." Moody v. Powell, 17 Pick. 490; Woodman v. Dana, 52 Me. 9; State v. Hastings, 53 N.H. 452; Tyler v. Todd, 36 Conn. 218; Calkins v. State, 14 Ohio St. 222; Bragg v. Colwell, 19 Ohio St. 407; Holmberg v. Johnson (Kan. Sup.) 25 P. 575; Morrison v. Porter (Minn.) 29 N.W. 54; Bank v. Whitehill, 10 Serg. & R. 110; Eborn v. Zimpelman, 47 Tex. 503; Phillips v. State, 6 Tex. App. 364. And such, we think, is the trend of modern authority. Chief Justice Shaw, in delivering the opinion in Moody v. Rowell, supra, says: "It seems to be difficult to distinguish, in principle between the case of a paper admitted or proved to be genuine, given in evidence for another purpose, and a paper the genuineness of which is equally well established, when offered for this express purpose. In both cases the result depends upon skill and judgment in making the comparison and discovering the resemblances and differences."

4. There was testimony at the trial tending to show that the consideration for which this note was given was principally legal services rendered to the said Kenyon by the appellant. For the purpose of showing...