Parker v. Friendt

• Decision Date: 10 March 1954
• Parties: , 69 Ohio Law Abs. 290, 59 O.O. 112 PARKER v. FRIENDT.
• Court: Ohio Court of Appeals

Page 329

99 Ohio App. 329

118 N.E.2d 216, 69 Ohio Law Abs. 290, 59 O.O. 112

PARKER v. FRIENDT.

Court of Appeals of Ohio, Cuyahoga County.

March 10, 1954.

McDonald, Hopkins, Hood & Hardy, Cleveland, for plaintiff appellee.

Steven M. Kormendy, Cleveland, for defendant appellant.

KOVACHY, Judge.

This cause had its inception in the Municipal Court of Cleveland where plaintiff appellee obtained a judgment by confession on a cognovit note signed by defendant appellant. The judgment was satisfied through garnishment proceedings. Defendant thereafter filed a petition to vacate the judgment and was permitted to file an answer and cross-petition. The issues thus joined were tried to a jury which brought a verdict in favor of plaintiff on the petition and the cross-petition. On such verdict, judgment was rendered by the court. Upon appeal to this court, the judgment was reversed and the cause remanded for further proceedings. The jury, in the second trial, again brought in a verdict for the plaintiff on the petition and the cross-petition on which judgment was rendered and the appeal on questions of law from this latter judgment is now before us.

Plaintiff's petition in substance alleged that $1,600 with interest was due from defendant on a certain promissory note, attached to and made a part of the petition, which the defendant had failed to pay according to its terms and conditions.

The defendant in her answer denied that she was indebted to the plaintiff on the promissory note in any sum whatsoever and further said that without denying that the signature on said alleged promissory note was her own, denied that she placed it on the paper with the knowledge that the same was a promissory note to pay the plaintiff the sum of $1,600 or any other sum. She plead further that the note was wholly without consideration and that the obtaining of it by plaintiff from defendant was fraudulent and void.

Defendant's cross-petition set forth in detail the court proceedings culminating in the satisfaction of the original judgment and then reiterated the claims made in the answer and prayed 'that the judgment obtained by the plaintiff against defendant as aforesaid, be vacated and held for naught and that plaintiff's petition be dismissed and that defendant be awarded a judgment on her cross-petition in the amount of $2092.95 with interest at six percent from June 6, 1950, together with costs of this action.'

Plaintiff filed a reply denying defendant's claims in her answer and cross-petition.

We have read the bill of exceptions carefully. Plaintiff testified that he advanced $1,600 to defendant to purchase a piece of land with two houses. He introduced an official bank check made out to him as payee in the amount of $1,475, and endorsed by him and the defendant, which check admittedly was deposited in the real estate transaction. He also introduced a purchase agreement signed by him on behalf of defendant, which verified his claim that he made a cash deposit. Defendant, on cross-examination, admitted that the signature on the note was her signature. Plaintiff's counsel testified that the note was filled out in his handwriting in his law office in the presence of both plaintiff and defendant and that defendant then and there signed the same with his pen. On sight, the ink of the filled in matter and the signature seem uniform in body and color.

The defendant in her defense said that plaintiff had cashed some of her pay checks and had kept money owing to her which was repaid in the house transaction, he saying at the time 'well, you take the money that you have and the little bit more that you need I will put to it because I owe you that much.' She then explained this claimed remark by saying 'for coming in every day to spend his time there.' the two apparently having carried on a close friendship for years despite the marriage status of plaintiff and his four children.

To bolster this claim, however, defendant was able only to produce two paychecks in the aggregate sum of $90.65 which she claimed were cashed by plaintiff for her.

Defendant further testified that at the time the note was signed by her it was not filled out and that plaintiff told her he wanted her to give him a receipt to show that he did not owe her any money so if he and her daughter should come to live with her, if anything should happen to her, her daughter couldn't turn around and sue him for any money that belonged to her; urged her to 'sign this' when she went to get her receipt book, and said 'so why bother filling it out. I will just keep it in case I ever have to have it' when she suggested 'making it out.'

Plaintiff admitted cashing some of her checks but claimed that in all instances it was a mere accommodation and vehemently denied that he had ever kept any money belonging to her.

The note signed by defendant was of the printed form variety. The printed matter was as follows:

Cognovit Note

'$_____

Cleveland O. _____ 194_

_____ promise to pay to the order of _____ Dollars with interest at the rate of _____ percentum per annum, at __________ and hereby authorize any attorney at law to appear in any court of record in the United States after the above obligation becomes due and waive the issuing and service of process and confess a judgment against _____ in favor of the holder hereof, for the amount then appearing due, together with costs of suit and thereupon to release all errors and waive all right of appeal.

No _____

Due _____

________ Seal

________ Seal

________ Seal'

We believe the verdict and judgment in this case to be supported by overwhelming evidence. Plaintiff's evidence was positive and specific, fully corroborated by authentic documentary evidence as well as oral testimony of a probative nature. Defendant's evidence, wholly uncorroborated, was general and vague and in some respects fantastic. Moreover, she obviously is a person of average intelligence and able to read and write. It should be difficult to believe that such a person, while in the full possession of her faculties, signed an instrument, plainly a note on its face, believing it to be a receipt. In our opinion, no intelligent jury, from the evidence in this case, could come to any other conclusion than the one indicated herein.

Lawsuits, by their very nature, must be decided by the evidence in the case. The general must yield to the specific--the nebulous to the real--the vague to the certain. There is no other way known to man to settle controversies. In the great majority of cases justice is thus obtained.

Defendant presents seven assignments of error. Three have to do with the general charge of the trial court. We have considered each in its relation to the charge as a whole and in the light of the pleadings, evidence, issues and verdict.

In Western Ohio Railway Co. v. Fairburn, Admr., 99 Ohio St 141, at page 142, 124 N.E. 131, at page 131, the Supreme Court had the following to say:

'In determining the question of error in the charge of the trial court to the jury, it is necessary to consider that part of the charge which is claimed to be erroneous, in connection with the entire charge, to determine if the charge as a whole is erroneous, or, if any part thereof is erroneous, whether the same is prejudicial.'

The issues made by the petition and answer were simple: (1) did the defendant sign the promissory note believing the same to be a receipt rather than a note? (2) Was the defendant indebted to the plaintiff in the sum of $1,600 at the time?

The defendant claims the underscored portion of the following instruction to be prejudicial:

'Now, under the law, members of the jury, while you can read and write is chargeable responsibility in signing any document. It is the duty of one who can read or write and who is of average intelligence and has mental ability to understand, to know what he is signing (and if he signs in blank then he is charged with the responsibility of whatever is filled in later on.')

The plaintiff's case is bottomed on the claim that defendant signed a note complete in every detail. Defendant's case rests on the claim that the instrument, when signed, was in blank, she signing what she believed to be a receipt. Clearly then it was one or the other. The jury by its verdict adopted plaintiff's version. Even had they found for the defendant, the legal significance of matter filled in on a blank note would have been of no moment to them since that question patently was not involved in the case. In our opinion, the jury could not have been misled by this instruction and no prejudicial error ensued.

'Generally speaking, error in the instructions given in civil cases is not ground for reversal unless it is calculated to mislead the jury to the prejudice of the party seeking reversal.' 4 O.J.2d Appellate Review, Sec. 936, pg. 253.

The other claims of prejudicial error as to the charge of the court have to do with the Burden of Proof on the cross-petition, and Degree of Proof required in proving fraud in connection with the cross-petition. We believe the charges given by the court to be erroneous but not prejudicial under the circumstances existing in this case. The cross-petition asked for the return of money paid plaintiff in satisfaction of the very note that is the subject of controversy here. Manifestly, when the jury found for the plaintiff on the petition and in effect decided that the original judgment on the note was just and the money paid in satisfaction of it proper, the cross-petition asking for the return of that money fell of its own weight and the finding on it had to be for the plaintiff. No consideration of the cross-petition by the jury under the circumstances was required whatsoever. Such was the very instruction given the jury by the trial court when it said:

'If you find that the plaintiff has proved by a preponderance of the credible evidence that his allegations are true, then you will find for the...