Noyes v. Noyes

• Decision Date: 19 May 1916
• Citation: 224 Mass. 125,112 N.E. 850
• Parties: NOYES v. NOYES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 125

112 N.E. 850

NOYES

v.NOYES et al.

Supreme Judicial Court of Massachusetts, Essex.

May 19, 1916.

Exceptions from Superior Court, Essex County; Geo. A. Sanderson, Judge.

Action by Elbridge Noyes against Thomas Noyes and others, executors. There was a verdict for plaintiff, and defendants excepted. Exceptions overruled.

Robert E. Burke and Edward E. Crawshaw, both of Newburyport, for plaintiff.

Boyd B. Jones, of Boston, and Ernest Foss, of Newburyport, for defendants.

RUGG, C. J.

This is an action to recover damages for the breach of a written contract between the plaintiff and his father, dated December 4, 1895, whereby the latter promised to give to the plaintiff certain property ‘in consideration that he remain on the farm and manage the same for me in my old age.’ The issues raised at the trial were the genuineness of the alleged signature of the father to the contract, rescission and the measure of damages. The father was a farmed in Newbury, who died testate in January, 1913, survived by five sons and two daughters, and grandchildren.

1. A neighbor named Perkins was permitted to testify that in his opinion the signature of the testator to the contract of 1895 was genuine. He testified that he had seen his signature, but not often, and had seen him write his signature ‘once perhaps'; that he had testified at a previous hearing that in his opinion the signature was genuine but was unable to identify the paper then before him. This was all that he would say as to his qualification. At this time no standard of the testator's handwriting was in evidence.

It is the general rule that opinion evidence from one having no special qualifications by experience or study is not admissible. Exceptions to this rule exist where the facts about which the witness is asked to express an opinion are such as may be comprehended by persons of ordinary capacity and cannot be reproduced and described to the jury precisely as they appeared to the witness at the time of the event. The exception is founded on practical necessity in the administration of justice, where matters as to which in the common affairs of life such expressions of opinion convey definite conceptions of actual facts, and where otherwise evidence might be difficult or impossible to obtain. The exception comprehends a wide range of subjects. Exemplifications are found in proof of identity of persons and things, of likeness of sound, of distance, speed, weight and age, where the conclusion drawn from things seen or heard may be reasonable, accurate and reliable and yet not susceptible of being reproduced by verbal description. It was said by way of illustration in the thorough and full discussion of this general subject, in Commonwealth v. Sturtivant, 117 Mass. 122, 133 (19 Am. Rep. 401):

‘Every person is competent to express an opinion on a question of identity as applied to persons, things, animals or handwriting.’

It is plain, from the connection in which that sentence occurs in the opinion, that it was not intended to lay down an unvarying rule that everybody called as a witness might under all circumstances testify whether in his opinion, a disputed signature was genuine. It presupposed that there was some recognized necessity for the admission of such testimony. Where, for instance, the point in controversy is whether a lost document was in the handwriting of a certain person, anybody familiar with that person's handwriting may testify, although he pretends to no skill in the matter. State v. Shinborn, 46 N. H. 497, 88 Am. Dec. 224. So also, where one has considerable familiarity with the signature or handwriting of a person growing out of numerous observations, he may give his opinion even though unable to read or write. Foye v. Patch, 132 Mass. 105, 108. Where undoubted standards of handwriting, as well as the questioned signature, are before the jury, there is no occasion for the testimony of one who is neither an expert nor possessed of considerable familiarity with the handwriting of the person whose signature is under examination. The opinion of the jury under such circumstances is quite as good as that of the witness of ordinary experience who has no particular acquaintance with the genuine handwriting. There is, under such circumstances, no occasion for the opinion of the outsider of only ordinary intelligence. Whalen v. Rosnosky, 195 Mass. 545, 81 N. E. 282,122 Am. St. Rep. 271;Commonwealth v. Tucker, 189 Mass. 457, 486, 76 N. E. 127,7 L. R. A. (N. S.) 1056.

It seems to us that the testimony of this witness ought not to have been admitted. But this is one of the cases where much must be left to the discretion of the presiding judge in deciding in the first instance upon the qualification of a witness. His decision will be sustained unless it plainly appears to have been unwarranted. Nunes v. Perry, 113 Mass. 274, 276. The witness does not appear to have been of such commanding distinction, position or influence that his opinion would have unusually persuasive force with the jury. There was abundant other testimony on this point, from numerous witnesses on each side, as to the admissibility of which there is no contention. There was discussion in the presence of the jury upon the competency of this witness. He himself expressed doubt as to his testimony being of any value. The judge received it with evident reluctance and with careful warning that the witness' lack of familiarity with unquestioned signatures was to be considered in passing upon the weight to be given to the evidence. The case has been tried twice. In view of all these conditions, with some hesitation we are brought to the conclusion that, although the evidence was improperly admitted, that error has not injuriously affected the substantial rights of the defendants, and that therefore there ought not to be another trial on this ground. St. 1913, c. 716, § 1. The witness Little, according to the record, had greater familiarity with the signature of the testator than did Perkins. It would have been a wiser exercise of discretion not to permit him to testify; but the exception hardly can be sustained.

2. It is contended that as matter of law the agreement of 1895 was rescinded. That contention depends in part upon another agreement in writing, signed by the plaintiff and his father, in these words:

‘Newbury, Mass., February 13, 1901. Agreement between James Noyes and Elbridge Noyes for one year from January 1, 1901. Elbridge Noyes shall receive for services, carrying milk, and general farm work the sum of nine dollars per week. Specified, Elbridge Noyes shall render an account of money received from milk and other farm produce once a month and also receive his payment in full for services rendered.’

Contemporaneously the plaintiff gave a receipt dated back to January 1, 1901, of this tenor:

‘Received from James Noyes $200 in full for all demands to this date. $200.’

The evidence was not in harmony as to the circumstances which led to the making of this agreement and the giving of the receipt. After the funeral of the father, his children gathered at his former home to hear the will read. By its terms the homestead was given to a brother of the plaintiff and the Knight and Highfield pastures and stock and tools were given in equal shares to the plaintiff and that brother. Under the agreement of 1895 all these were promised to the plaintiff. Certain other property was given to the plaintiff by the will. The plaintiff then said nothing about his agreement of 1895, but remonstrated with a brother who expressed dissatisfaction with the will. Subsequently he aided the executors in a contest over the will. He said nothing about his agreement until April, 1914. He presented a bill against the estate for a small amount, saying nothing about the 1895 contract. These and perhaps other acts are persuasive factors in support of the contention that the agreement in suit had been rescinded. But as to all of them the plaintiff offered explanation. It was not disputed that the plaintiff received some compensation from his father for work on the farm all the time after 189...