Moore v. Thomas

• Court: Arkansas Supreme Court
• Writing for the Court: HUMPHREYS, J.
• Citation: Moore v. Thomas, 200 S.W. 790, 132 Ark. 97 (Ark. 1918)
• Decision Date: 28 January 1918
• Docket Number: 121
• Parties: MOORE v. THOMAS

200 S.W. 790

132 Ark. 97

MOORE v. THOMAS

No. 121

Supreme Court of Arkansas

January 28, 1918

Appeal from Miller Circuit Court; Geo. R. Haynie, Judge; affirmed.

Judgment affirmed.

Webber & Webber, for appellant.

1. It was error to admit certain checks and papers in evidence on which appellant's signature appeared. This was prejudicial. 32 Ark. 337; 62 L. R. A. 836, and note; 2 Elliott on Ev., par. 1105; 6 Enc. of Ev. 410.

2. It was error to admit a letter purported to have been written by appellant. Appellee's testimony is very unsatisfactory. The first note was a forgery and the signature to the second promise was obtained by fraud. There was absolutely no evidence to sustain the verdict.

John N Cook, for appellee.

1. Appellee's testimony is consistent and the evidence supports the verdict. 126 Ark. 306; 113 Id. 403.

2. No exceptions were saved to the admissibility of the checks papers, letter, etc. 126 Ark. 305.

OPINION

HUMPHREYS, J.

Appellee brought suit before a justice of the peace in Garland township, Miller county, Arkansas, against appellant to recover a balance due upon a note in the sum of $ 460, purported to have been signed by appellant on January 5, 1915, for borrowed money.

Appellant defended against the note on the ground that it was a forgery.

Appellee obtained judgment against appellant in the magistrate's court, from which an appeal was taken to the circuit court of Miller county and the cause was there tried upon the same issue and a verdict and judgment rendered in favor of appellee for $ 222.90.

Proper steps were taken and an appeal has been prosecuted to this court.

Appellee testified, in substance, that appellant owed her $ 60 and that she had $ 400 in cash that she had obtained from her father's estate by gift from her stepmother; that by appointment she met appellant at the Crown Drug Store in Texarkana, Arkansas, where she handed him the $ 400 in money and received in exchange a promissory note for $ 460 which had already been filled out and signed; that he had previously arranged with her for this loan, that the body of the note was written in pencil and the signature in ink, and that she did not know who had prepared the body of the note; that it then occurred to her that she might need the money before the maturity of the note, and asked appellant for a demand note, which he agreed to give her; that on the same day, at the Miller County Bank & Trust Company, she wrote upon a deposit slip as follows: "I promise to pay Mollie D. Thomas $ 460 at 10 per cent. per annum," which promise was signed by him; that she obtained the money from her stepmother a few days before she loaned it to appellant; that when he executed the last promise he did not request her to return the original promissory note upon which she brought suit; that a short time after the execution of the note appellant endorsed her husband's notes amounting to $ 237.10, for which she gave appellant credit on her note.

Mary S. McCain gave testimony in corroboration of testimony given by appellee to the effect that she had given appellee $ 400 in money in December, 1913, which she had received, as widow, from the estate of T. J. McCain, deceased; that appellee was a delicate child and that she had learned to love her as much as if she had been her own child.

Appellee's evidence was also corroborated by the testimony of D. L. Dillard to the effect that, as administrator of the estate of T. J. McCain, deceased, he had paid Mary S. McCain, widow, $ 450 in cash in addition to other property which had been divided between the heirs prior to that time.

There was a conflict between the direct evidence of appellee and her stepmother, Mary S. McCain, as to the date she received the money, but appellee, in rebuttal, testified that her stepmother was old and forgetful, and while she testified the money was given to her in December, 1913, it was, in fact, given to her in December, 1914. This latter statement reconciled the conflict in the testimony on that point.

Appellant testified that the first note was a complete forgery and that his signature to the...