Nichols v. Baker

• Decision Date: 05 July 1883
• Citation: 75 Me. 334
• Parties: LEMUEL NICHOLS v. ALFRED BAKER.
• Court: Maine Supreme Court

75 Me. 334

LEMUEL NICHOLS v. ALFRED BAKER.

Supreme Judicial Court of Maine.

July 5, 1883

ON EXCEPTIONS, and motion to set aside the verdict.

Assumpsit on a promissory note of the defendant for one hundred and eighty dollars, dated June 7, 1879, payable in three months. The writ was dated September 9, 1879. The plea was the general issue. The verdict was for the defendant.

The facts sufficiently appear in the opinions.

Humphrey and Appleton, for the plaintiff.

The testimony of witness, Blagden, relating the circumstances of his giving a note to the same parties who procured the defendant's note, and that he hadn't received the pruning shears, was inadmissible because the jury could not limit its application.

Suppose these same men committed these two distinct crimes we respectfully insist that it was not competent to prove the second for the purpose of proving or giving intensity to the first. In the language of MORTON, J., in a similar case, ( Jordan v. Osgood, 109 Mass. 461)" the effect of such proof may be to produce such a state of mind in the jury to whom it is addressed, that a less weight of testimony satisfies them than would otherwise be necessary to produce conviction."

The wrong done an innocent plaintiff by the admitting of such testimony, cannot be better illustrated than by this very case. Suppose a single individual is defrauded into giving his note, and this note, before maturity, goes regularly into the hands of an innocent purchaser. In a suit between such purchaser and the defrauded maker, a jury would without difficulty decide, as the law decides, that the defrauded maker must pay the innocent purchaser. But when the case is no longer a single case, but is duplicated and multiplied, the feelings of sympathy and indignation on the part of jurors may very likely overbear considerations of duty and law. See remarks of HOWE, J., in 13 Allen 179.

But in this case Blagden was permitted to testify what two persons stated to him, with no proof whatever of identity except two signatures of different names, with no testimony whatever as to the identity or similarity of handwriting. We respectfully submit that this was an error. Jordan v. Osgood, 109 Mass. 457; Thayer v. Thayer, 101 Mass. 111; Com. v. Elwell, 1 Gray 463; Com. v. Blood, 4 Gray 31; Blake v. Howard, 11 Me. 202; Aldrich v. Warren, 16 Me. 465; State v. Hastings, 53 N.H. 452; Criminal Leading Cases, (False Pretences).

Counsel in an able argument further contended that the motion to set aside the verdict as being against law and the weight of evidence, should be sustained.

Wilson and Woodward and Jasper Hutchings, for the defendant, cited: Rowley Bigelow, 12 Pick. 307; Wiggin v. Day, 9 Gray 97; Cary v. Hotailing, 1 Hill 311; Com. v. Stone, 4 Met. 43; 1 Greenl. Ev. § 111; State v. McAllister, 24 Me. 139; Castle v. Bullard, 23 How. 172; State v. Potter, 52 Vt. 33; Mussey v. Mussey, 68 Me. 346; Woodman v. Dana, 52 Me. 9; Moody v. Rowell, 17 Pick. 490; Homer v. Wallis, 11 Mass. 308.

SYMONDS, J.

One of the grounds of defence to this action on a promissory note alleged to have been signed by the defendant was, that if the signature was genuine--which was denied--it was procured by fraud, under the pretence of selling him some pruning shears to be subsequently delivered, or appointing him agent for the sale of them; --the men who obtained the note intending not to deliver the shears at all, but using the form of negotiation about them merely as an instrument of fraud, as a means by the aid of which they could the more readily accomplish their purpose of deceiving the defendant and getting his note by falsehood, without consideration and without knowledge even on his part of the character of the paper he was signing.

The court correctly ruled that if the evidence sustained this claim in defence, the note as between the original parties would be void.

Upon this issue, then, the question of the intent of the men with whom the defendant dealt became material. The shears were never delivered, and no explanation was ever given. Was this accidental, due to subsequent causes which might remove the charge of fraud, or was it a part of the original plan--none having been sent because there was no intention to send them?

Upon this question alone, and for the purpose of showing that the note was fraudulent in its inception, that the design was not to deliver the shears, the defendant offered testimony to prove that within a few days of the same time, the men who procured the note of the defendant had a substantially similar transaction with a resident of a neighboring town, and that in his case, too, the shears failed to arrive. To the admission of this evidence, carefully limited at the time and in the charge to the force the judgment of the jury should attach to it in explanation of the non-delivery of the shears, to its effect to strengthen the probability that the failure to deliver them to the defendant was intentional, there being no explanation in either case and two such accidents not being so likely to occur as one, the exception of the plaintiff cannot be sustained. It is clear upon principle that when the question to be tried is whether the failure in one instance to deliver goods which had been promised and for which a note had been given was intentional and fraudulent, or not, the fact that about the same time under similar circumstances, notes were procured by the same men in other instances upon the same promise to deliver goods, and none arrived and no explanation was given, is proper for the consideration of the jury in determining what design was present in the particular transaction upon which they are to pass. The ruling at the trial, in terms, only received the fact of non-delivery in two similar instances as tending to show that in each, the intention to deliver was wanting. We think this was correct and also that the ruling may be supported on broader grounds. It is generally true that contemporaneous frauds may be proved when they tend to show a fraudulent intent in the particular transaction under investigation. In the numerous cases in which this question has been considered, there may be slight differences in result, not entire uniformity in deciding in what cases one fraud may properly be said to make manifest the intention which pervades another transaction; but the rule of evidence certainly goes to this extent, as stated in Jordan v. Osgood, 109 Mass. 461, that another act of fraud is admissible to prove the fraud charged, when there is evidence that the two are parts of one scheme of fraud, committed in pursuance of a common purpose. This rule seems sufficient to justify the admission of the testimony to which exception is taken.

The procurers of the notes were two strangers, who hired teams at the plaintiff's livery stable in Bangor, were engaged for six or seven weeks in driving about the country, and then went away. Evidence tending to show that they were employed during this time, in obtaining notes from different persons upon the promise to deliver pruning shears for them, that their business with others and their methods of doing it were substantially the same as with the defendant, close similarity in the ways in which they operated in the several instances, in the representations and means by which they induced persons to sign, the number of notes which they obtained while driving over a limited territory during comparatively a short period--the plaintiff himself having purchased six of them,--their going away without delivering the shears according to their promise, the appearance of the notes in the hands of persons claiming to collect them as innocent holders; --evidence tending to show these facts was admissible to prove a general plan to defraud, of which the jury might find the transaction with the defendant was a single instance. In the general features of the case, we think there was circumstantial evidence from which the jury were warranted in finding a common design in the two cases, the details of which were received before them; --and evidence tending to show that such common design was a fraudulent one, was pertinent, whether it related to one case or the other, or to both. The evidence went far enough in this direction to authorize the admission of testimony that there were other instances in which the goods were not delivered according to the contract, as tending to prove a fraudulent purpose in this.

In connection with the circumstances of the case, pointing more or less directly to the conclusion that the men who obtained the notes were the same in the two cases, papers written by them were received in evidence to enable the jury to judge of their identity by comparison of hands. To this exception was taken.

In 1 Greenl. Ev. § 512, referring to the use of answers in chancery in evidence in subsequent proceedings, it is said " some proof of the identity of the party will be requisite. This may be by proof of his handwriting." At the trial of indictments for perjury in such answers, it was held in Rex v. Morris, 2 Burr. 1189, and in Rex v. Benson, 2 Camp. 508, that identity of the person might be shown by proof of handwriting. In an action against Henry Thomas Ryde, as the acceptor of a bill of exchange, it appeared that a person of that name had kept cash at the bank where the bill was payable, and had drawn checks which the cashier had paid. The cashier knew the person's handwriting by the checks and testified that the acceptance was in the same handwriting; but he had not paid any check for some time and did not personally know him. There was no other proof of his identity with the defendant, and this was held prima facie sufficient. " It cannot be said there was not some evidence...