Murphy v. Skinner (In re Skinner's Will)

• Citation: 160 Wis. 554,152 N.W. 172
• Parties: IN RE SKINNER'S WILL. MURPHY v. SKINNER.
• Decision Date: 13 April 1915
• Court: United States State Supreme Court of Wisconsin

160 Wis. 554

152 N.W. 172

IN RE SKINNER'S WILL.

MURPHY

v.SKINNER.

Supreme Court of Wisconsin.

April 13, 1915.

Siebecker and Kerwin, JJ., dissenting.

Appeal from Circuit Court, Milwaukee County; E. B. Belden, Judge.

Proceedings by Lawrence Murphy to establish a claim against the Estate of James Washburn Skinner, deceased. From a judgment dismissing plaintiff's complaint, he appeals. Affirmed.

The plaintiff, Lawrence Murphy, filed in the county court of Milwaukee county a verified petition setting forth that on the 14th day of March, 1906, one Lloyd Skinner made, executed, and delivered to plaintiff a promissory note for $5,650, with interest at 8 per cent., due May 24, 1906, which note was signed by Lloyd Skinner, payable to his own order, and indorsed by Lloyd Skinner and J. W. Skinner. Plaintiff asserts that he received the note from Lloyd Skinner for a valuable consideration at or about the time it was dated, and that when it fell due it was presented for payment, and payment was refused, and the note was duly protested, and that no part thereof had been paid. J. W. Skinner having died, the claim was presented against his estate. His widow, who was the executrix of the estate, denied under oath that the indorsement of the name of J. W. Skinner on the back of the note was in the handwriting of the decedent. The claim was disallowed in the county court, and an appeal was taken to the circuit court, where the case was tried by a jury. The court submitted but one question to the jury, being the following:

“Is the signature ‘J. W. Skinner,’ on the back of the promissory note sued on in this case, in the handwriting of J. W. Skinner, now deceased?”

The jury answered this question, “No.” The plaintiff Murphy moved to change the answer to the question from “No” to “Yes,” and, in case such motion was denied, then for judgment notwithstanding the verdict, and, in case both motions were denied, for a new trial. All of these motions were denied, and, on motion of the attorney for the estate, judgment was entered dismissing plaintiff's complaint. From that judgment plaintiff appeals.William E. Burke, of Milwaukee (Lehr, Kiefer & Reitman, Lester C. Manson, and Charles S. Thompson, all of Milwaukee, of counsel), for appellant.

Frank M. Hoyt, of Milwaukee, for respondent.

BARNES, J. (after stating the facts as above).

1. The note in suit fell due May 24, 1906, and was protested for nonpayment on that day. Mr. Hughes, the notary who protested the note, testified that he had no recollection of Mr. Skinner's calling on him in reference thereto. The plaintiff promptly placed the note in the hands of his attorney, Mr. Kaumheimer, for collection, and Kaumheimer wrote Skinner demanding payment on May 28th. No written reply was received, but Kaumheimer was requested by telephone to call on Skinner in reference to the matter. He did so, and was advised by Skinner that he would not pay the note. Kaumheimer did not pretend to remember the conversation, but testified that his impression was that Skinner said there was some question about the signature. No suit was brought on the note by Kaumheimer. In 1907 the note was placed in the hands of Attorney Donovan for collection and remained with him for over a year, and no suit was brought by him. Later one Pestalozzi presented the note to Skinner for payment, which was refused. In May, 1910, the note was placed in the hands of Attorney Trottman for collection, who demanded payment, which demand was refused. In 1911 appellant placed the note in the hands of Attorney Blatchley, with instructions to sue, but no suit was brought, and the note was returned to the plaintiff. Nothing further was done until after Mr. Skinner's death, which occurred a few weeks before the statute of limitations would have run on the note. It was then filed as a claim against Skinner's estate by Attorney Wegner.

[1] The appellant argues that it was the duty of Skinner to promptly advise the bank which held the note for collection at maturity that his signature thereon was forged and that it was also his duty to unequivocally so advise Kaumheimer and the other parties who presented the note for payment. Appellant also argues that the conduct of the deceased furnished evidence of ratification of the signature if it was forged, and of estoppelto deny the genuineness of the signature, and also of waiver of the defense of forgery, and that it was error not to submit appropriate questions to the jury covering those issues. The plaintiff requested the court to submit a question covering the matter of ratification.

It appears without dispute that Mr. Skinner promptly declined to pay the note when first requested so to do, and that he persistently and consistently declined to do so thereafter until the time of his death. It is difficult to see wherein the acts referred to constituted evidence of ratification of the signature, or wherein Skinner waived any right to set up the defense of forgery, or how he estopped himself from so doing. A party who refuses to pay a note that is presented to him does not thereby waive or lose any legitimate defense he may have to an action brought on the instrument. It would be just as reasonable to claim here that the defense of payment or of no consideration was lost to Skinner as it is to claim that the defense of forgery was lost. Skinner neither said nor did anything to lead the plaintiff to believe that he did not intend to rely on any legitimate defense he might have. The case is not one where the plaintiff was misled to his disadvantage into believing that some defense other than that finally interposed was relied on. It is apparent that the plaintiff was not in fact misled. Skinner was understood to be a man of means, amply responsible for the amount of the note. Plaintiff knew that the note had not been paid, and, if it represented a good faith transaction, forgery was about the only defense left. Kaumheimer understood that the refusal to pay arose over the signature, and presumably so informed his client. That plaintiff understood where the trouble lay is quite evident from the fact that, when the note was given to Trottman for collection, there was turned over with it photographic copies of the genuine signature of J. W. Skinner.

[2][3][4] 2. Pursuant to notice served on her, the executrix produced a note for $500, dated in October, 1905, and another for a like amount dated in February, 1906. Both of these notes were signed by Lloyd Skinner and indorsed by J. W. Skinner. Admittedly the signature “J. W. Skinner” on these notes was genuine. She also produced two small notes executed by Lloyd Skinner in 1902, aggregating $90, which bore the name “J. W. Skinner” on the back. It is conceded that, if the name of J. W. Skinner was a forgery on the note in suit, it was also forged on these notes, and that the same party wrote all three signatures. J. W. Skinner waived protest on these two notes, and, from the fact that they were found among his effects, it is fair to presume that he paid them. Four other notes signed by Lloyd Skinner and containing the name of J. W. Skinner on the back were also produced, one dated March 5, 1902, for $700, one dated January 23, 1906, for $1,000, one dated March 14, 1906, for $1,000, and one dated April 25, 1906, for $1,528. It is conceded that the same party who wrote the name “J. W. Skinner” on the note in suit also wrote the name on these notes, and that, if any of these signatures were forgeries, all of them were. The indorsement on at least three of the four last-mentioned notes were passed as genuine by the cashier of the First National Bank, where Mr. J. W. Skinner kept an individual account, and where the Northwestern Mutual Life Insurance Company, of which Mr. Skinner was secretary, also kept a large account, so that the bank officials had every reason to be familiar with his signature.

The court refused to receive these several notes in evidence, and it is insisted that this ruling was erroneous for the following reasons: (a) The proof was competent to show that J. W. Skinner adopted as his own the signature in question and ratified its use. (b) By his conduct in paying the forged notes, if they were forged, he estopped himself from...