Palmer v. Blanchard

• Decision Date: 08 June 1915
• Citation: 113 Me. 380,94 A. 220
• Parties: PALMER v. BLANCHARD.
• Court: Maine Supreme Court

94 A. 220

113 Me. 380

PALMER

v. BLANCHARD.

Supreme Judicial Court of Maine.

June 8, 1915.

On Motion from Supreme Judicial Court, Lincoln County, at Law.

Action by Rachel M. Palmer against Henry F. Blanchard, administrator. General verdict and special findings by the jury for the defendant, and plaintiff moves to set aside the verdict and for a new trial. Motion sustained, and new trial granted.

Argued before SAVAGE, C. J., and SPEAR, KING, HALEY, HANSON, and PHILBROOK, JJ.

Henry W. Oakes, of Auburn, and Joseph B. Reed, of Portland, for plaintiff. A. S. Littlefield, of Rockland, and C. L. Macurda, of Wiscasset, for defendant.

HALEY, J. An action of assumpsit upon two promissory notes alleged to have been given by George E. Trask in his lifetime; one dated April 1, 1908, for $2,400 payable to the plaintiff or order in one year from date, purporting to have been signed by George E. Trask and Trask Bros., a firm composed of said George E. Trask and Henry Trask, and witnessed by B. A. Bailey, the other dated October 30, 1908, for $3,600, payable to the plaintiff or order, purporting to have been signed by George E. Trask and Trask Bros. and witnessed by Henry A. Bailey. The case was tried at the April term of the Supreme Judicial Court in Lincoln county, the verdict was for the defendant, and the jury returned special findings that the signatures of George E. Trask to said notes were not genuine signatures of said George E. Trask; that there was no consideration for the notes; that both notes were materially altered after the delivery without the knowledge or consent of said George E. Trask, and the case is before this court upon a motion to set aside the verdict as against law and evidence, and upon a motion for a new trial upon the ground of newly discovered evidence. If the evidence authorized either of the special findings, the general verdict for the defendant was right; if it did not, the general verdict is wrong, and it is necessary to consider each of the special findings.

George E. Trask and Henry L Trask, his brother, for many years before the death of George were engaged in the lumber business, and owned and operated mills; one of them situated at Alna, was purchased of the plaintiff as administrator of her husband's estate. They were both old men at the time of the transaction in question, and George E.'s eyesight was so impaired that he could not read, but he was able to drive a team, and he attended to the operation of the mills and made his home with the plaintiff. Henry L Trask was old and in-firm, and did not attend to the financial part of the business; never, until after the death of George E., signing any notes or checks. The plaintiff kept the books of the firm, wrote the letters, and made out the checks for George E. to sign, boarded the men employed in the mill, paid off the help, and took charge in part of the operation of the mill, giving orders and directions to the help, Henry L. claims that, a few hours after the death of George, he went to the plaintiff's home, and that during his visit the plaintiff informed him that she had two notes of George B., and at other times she referred to the notes and stated that they were given her by George E. in payment of the amount due her, and also stated, 1n substance, that she had an arrangement with George whereby she was to share in the profits of the business.

The plaintiff was not allowed to testify to events that took place before the death of George E. Trask, and did not recall the statement testified to as having been made by her after the funeral, but stated that they had talk about the notes, and then they were spoken of as the notes of George E. and afterwards there were other conversations in the presence of others, at one of which it is claimed that Henry L. stated that George E.'s estate could not pay the notes, and that afterwards the plaintiff stated that the notes were signed, not only by George E., but also by Trask Bros., and she afterwards let the agent of the defendant make a copy of the notes.

The defense being forgery, the plaintiff was obliged to prove, by a preponderance of the evidence, that the signatures were genuine signatures, and testimony that they were forgeries to establish the defense should be clear and convincing, for death and the law had sealed the lips of the alleged maker and payee, and the commission of crime is so improbable that under such circumstances the law requires stronger proof to justify a verdict that in effect fastens upon the plaintiff the felonious crime of forgery than is required to prove a defense that imports no crime "because the improbability or presumption to be overcome in one case is much stronger than it is in the other." Decker v. Ins. Co., 66 Me. 406; Ellis v. Buzzell, 60 Me. 211, 11 Am. Rep. 204. Were the signatures to the notes genuine? It was admitted that the plaintiff filed in the probate court, in writing supported by her affidavit, a claim against the estate of George E. Trask, describing the notes produced at the trial, and that the body of the notes are in the handwriting of the plaintiff. Benjamin A. Bailey testified that he signed, with his fountain pen, the first note as a witness at its date, at the request of George E. Trask, who signed it in his presence and in the presence of the plaintiff, a sister to the witness. It appears in the case that Mr. Trask was an aged man, and that his eyesight was very much impaired, but that he did business and signed notes and checks. The testimony of this witness is clear and positive, and is only criticized as to the date because it is claimed that he did not deliver nursery stock for a month after the date, but the witness did not state he was delivering nursery stock at that time. Henry A. Bailey testified that he signed the note dated October 30, 1908, as a witness, at the request of George E. Trask, who signed it with a fountain pen in his presence and in the presence of the plaintiff, the witness' sister, and that the note was read by the plaintiff to said Trask before it was signed, and that the witness read it before he signed it, and his memory seems to be clear as to the transaction.

The defense called upon this branch of the case but one witness, a handwriting expert, who testified that, in his opinion, the signatures of both George E. Trask and Trask Bros. to the notes were not genuine signatures, and that the signatures of Trask Bros. were written a long time after the notes and the signatures of George E. Trask, and attacked the signatures on two grounds: (1) Comparison of the appearance of the signatures in respect to form, claiming that details of the different letters differ from the standards; (2) difference in age of signatures with respect to time of writing by comparison of mental models of different periods, and by difference of ink with respect to age on the paper. His testimony is very lengthy, taking up 60 pages of the report, and is sharply attacked by the plaintiff.

It is urged that, for the purpose of creating confidence in his opinion, he, in the presence of the jury, analyzed specks of ink on the notes in question, and the jury examined, by the aid of a compound microscope furnished by the witness, the result of the chemical analysis, and it appears from his examination, that all the analysis determined was the kind of ink, and had no tendency to prove that the signatures were not genuine, because all writings upon the note were of the same kind of ink, and the witness knew it, because he had previously examined the writings; that many of the peculiarities that he testified to in the disputed signatures were not peculiarities, and a careful comparison of the disputed signatures with the admitted standards show that the standards have, in many instances, the same peculiarities that he testified the disputed signatures had, and the finding of which caused him to give his opinion that the signatures are not genuine; that, as one of the reasons for his opinion that they are not genuine signatures are positions and measurements of certain letters in the disputed signatures; and that an examination of these letters shows that his statement in reference to them is not true.

We cannot, in this opinion, go at length into all the details and claims of this witness, or the answer of the plaintiff thereto, but ...