Renner v. Thornburg

• Citation: 111 Iowa 515,82 N.W. 950
• Parties: RENNER ET AL. v. THORNBURG ET AL.
• Decision Date: 21 May 1900
• Court: Iowa Supreme Court

111 Iowa 515

82 N.W. 950

RENNER ET AL.

v.THORNBURG ET AL.

Supreme Court of Iowa.

May 21, 1900.

Appeal from district court, Greene county; S. M. Elwood, Judge.

Action at law on a promissory note. Defendant McLain denied his signature appended to the instrument. In an amendment to the petition, plaintiffs pleaded ratification and adoption of the signature, and this defendant denied. There was a trial to a jury, resulting in a verdict and judgment for defendants, and plaintiffs appeal. Affirmed.E. G. Albert and Rose & Henderson, for appellants.

Russell & Toliver, for appellee McLain.

DEEMER, J.

To prove that the signature attached to the note purporting to have been made by defendant McLain was a forgery, he introduced experts, who compared it with others said to have been made by him, and gave as their opinion that the signatures were not written by the same person. It is said that the standards used for comparison were not sufficiently proven. Defendant McLain testified positively that he signed the name appearing on the instruments that were claimed to be genuine, and five other witnesses who were familiar with his signature testified to the same thing. The signatures to these documents were appended before the one in question was executed, and there is no room for the contention that the standards were manufactured. We do not mean to hold that the genuineness of the standard may be proven by persons who have seen the party write. The standard itself must be established by evidence of a higher and more certain character. But there is no doubt that the party who wrote the signature may prove it by his own oath. Such evidence is the very best that can be offered. Nothing is then left to presumption. Hyde v. Woolfolk, 1 Iowa, 159;Sankey v. Cook, 82 Iowa, 125, 47 N. W. 1077. There was no error in admitting the expert evidence.

2. In the first instruction the jury was told that the plaintiffs had not offered evidence in support of their plea of estoppel set forth in the reply, and that they should disregard that claim. The reply to which this instruction relates pleads an estoppel based on the declarations of McLain after he knew of the existence of the note, and the conduct of plaintiffs with reference thereto. In part, it was based on the same state of facts as were pleaded in an amendment to the petition pleading ratification and adoption. It is not claimed that the court erred in refusing to submit the issue of estoppel, but it is insisted that, in view of the facts pleaded in the amendment to the petition, the jury was misled by this instruction; that it could not tell what the court meant by “estoppel,” and was likely to understand from the instruction that none of the facts pleaded in reply could be considered for any purpose. Were it not for the fact that the court fully and fairly instructed on the issue tendered by the amended pleading, and explained the doctrine of ratification and adoption as applied to the evidence adduced, there would be much force in appellants' position. But, in view of the fact that the whole matter was fully covered, we do not see how the jury could have been misled. Plaintiffs contend, however, that a request from the jury for further instructions clearly shows that some of the members were misled by the instruction. That request was peculiar. It reads as follows: “We, the jury in the case, having failed to determine how much of the reply in plaintiffs' claim they should disregard (as stated in instruction one of the court).” This is followed by a special request for explanation of instructions 5, 9, 12, 18, and 19. The sentence was never completed, unless the request referred to made it complete, and it appears that the trial court never saw it. In itself, it is meaningless, and it is apparent that the jury started to make some kind of request, and then abandoned it, or embodied it in what followed. The request for further instructions relating to ratification and adoption was complied with, and there is no mistaking the fact that this issue was not taken from the jury. We do not think it was in any manner misled.

3. The court instructed that the burden of proving the genuineness of the signature was on the plaintiffs. This is complained of. The original petition was in the usual form, and contained a copy of the note. Defendant, in answer, denied the genuineness of the signature under oath. Plaintiff then filed an amendment to its petition, pleading ratification and adoption, and made the former petition a part by reference. Defendant filed a general denial in answer, but did not, in this answer to the amendment, deny the genuineness of the signature. In view of these facts, plaintiffs contend that the burden was on the defendant. We do not think so. The amendment virtually conceded that defendant had not signed the note. The genuineness of the signature was already denied under oath, and the amendment, conceding it to have been necessary, was to meet the issue thus tendered. Having once denied the signature under oath, defendant was not bound to renew his denial after every amendment. In view of this denial, the burden was on plaintiffs. Code, § 3640; Bank v. Young, 36 Iowa, 44. Moreover, if the amendment to the petition be treated as a separate and independent count, that must be complete and sufficient in itself. Defendant was not obliged to deny the signature under oath in order to shift the burden, for the reason that no copy of the note was incorporated in or attached to the amendment. Again, the record shows that both the petition and amendment thereto were filed before defendant's answer denying the genuineness of the signature.

4. Instruction 11 reads as follows: “Before you should find...