Rowell v. Fuller's Estate

• Decision Date: 15 October 1887
• Citation: 59 Vt. 688,10 A. 853
• Court: Vermont Supreme Court
• Parties: ROWELL v. FULLER'S ESTATE.

10 A. 853

59 Vt. 688

ROWELL

v. FULLER'S ESTATE.¹

Supreme Court of Vermont. Orleans.

October 15, 1887.

Exceptions from county court, Orleans county.

Appeal from probate court upon disallowance of claim by commissioners. This was an action of general and special assumpsit by the plaintiff, as surviving partner, with a count in favor of plaintiff upon promissory note owned by him in his own right. Pleas, general issue; payment; statute of limitations; notice denying the signature; replication; similiter as to general issue; traverse of payment; new promise as to statute of limitations; general issue and statute of limitations as to plea and offset. Trial by jury, county court, Orleans county, February term, 1887, Royoe, C. J., presiding. Verdict for the defendant; exceptions by the plaintiff.

On the trial plaintiff offered in evidence the note and receipt declared upon, the execution of which was admitted. Plaintiff then offered the paper marked "A," which is as follows:

"Montpelier, Vt., June 5, 1884.

"I hereby acknowledge that my promissory note for the sum of ninety-seven dollars and seventy-four cents, ($97.74,) dated November 2, 1857, and payable to J. & H. Rowell or bearer one day from date, and interest annually, is not paid, and promise to pay the same on demand. And 1 also acknowledge that the promissory notes taken by me from J. & H. Rowell for collection, and described in my receipt given for the same, and dated July 16, A. D. 1857, have not been accounted for, except as shown by indorsements on the back of said receipt; and promise to pay on demand the amount due from me on account of said promissory notes, with annual interest.

Warren Fuller."

The signature was denied by defendant.

Defendant presented a paper upon which was written the name "Warren Fuller," and nothing else, which was marked "Defendant's Exhibit No. 1." Also a note purporting to be signed by Warren Fuller, which was marked "Defendant's Exhibit No. 2," with evidence tending to show that the name "Warren Fuller" on each was written by the intestate, but no testimony of any witness who saw the intestate write either of said names. Defendant offered the name "Warren Fuller," as written on Papers 1 and 2, in evidence as genuine signatures of the intestate, to be used for the purpose of comparing the signature in dispute therewith. Plaintiff objected to the admission or use of Papers No. 1 and No. 2, or the name as written thereon, as standards for comparison, because "they are only here on matter of opinion." "Mr. Wright says it passed through the bank, and was paid by Mr. Fuller, or by his procurement, and he thinks he wrote it; and further stated that the genuineness of these stands purely on opinion; and defendant now asks to take the expert's opinion, based upon the opinion of these other witnesses, as to whether the signature in question was written by Mr. Fuller." Whereupon counsel for defendant claimed that "whether or not these two (No. 1 and No. 2) are genuine is a question of fact for the jury to determine. If they decide that they are, then the evidence is connected. If we have not sufficiently proved them to be Mr. Fuller's signatures, then the testimony of the expert, as to those, falls to the ground." The court said: "I suppose you want to ask him, after looking at the signatures, whether or not in his opinion the same man wrote them all." "One test to ascertain whether a paper is genuine or not is to compare that paper with other signatures of the writer. Perhaps it is one of the most satisfactory tests known to the law. These two papers—the handwriting on them—is proved by the opinion of witnesses who saw him write. I think it is competent to show those to the expert for the purpose for which it was offered. I think that question was decided in the Phair Case. If the jury should be satisfied, upon a full examination of all the proof, that those papers were not signed by Mr. Fuller, the comparison would go for nothing. I think the papers are admissible." Counsel for plaintiff further said: "We object to the submitting to the jury the question of the genuineness of any signatures taken as standards. That must be admitted or proved before they can be used as a standard." The court, without deciding whether the name on No. 1 and on No. 2 had been proved to be genuine or not, overruled the objections, and admitted the Papers No. 1 and No. 2 for the purpose only of comparisons with the signature in dispute.

Defendant also offered in evidence photographs of the name "Warren Fuller," as written on Papers No. 1 and No. 2 and "A," (being a disputed signature,) and of one signature of Warren Fuller admitted to be genuine, which last signature was on the Pavilion register; and the testimony of defendant tended to show that the last-named signature was written by Fuller on the day preceding the day that the disputed signature was claimed to have been written. This admitted signature was in evidence. The evidence of the photographer who made the photographs was introduced by defendant, which evidence tended to show that the photographs were taken by being printed from negatives, which negatives were not in any way touched up, and no testimony was introduced to contradict this. Plaintiff objected to the admission of the photographs. The objection was overruled, and all the photographs were admitted.

After the foregoing objections, ruling, and exceptions, defendant introduced in evidence a book of accounts, called the "Marble Book," and a book called the "Diary," which defendant's evidence tended to show contained a large number of entries in the handwriting of Fuller, made in the ordinary course of business. The entries on the Marble Book; purported to cover a period from the year 1870 to 1885.

D. T. Ames was introduced as a witness by defendant, and was the witness upon the stand at the time of the foregoing objections. The testimony of Ames tended to show that he never saw Warren Fuller write, and never corresponded with him; that his business is that of pen artist and publisher, and an examiner of questions of disputed handwriting; and that he had been called to testify in many cases as examiner of such handwriting; and that previous to coming to Newport to testify in this case he had seen several of the standards and the photographs referred to. He was allowed to examine all the photographs, Marble Book, Diary, Hotel Register, and the signatures herein referred to, and testify as an expert as to the genuineness of the signature in controversy. His testimony tended to show that he had examined the signature in dispute, and also the Exhibits No. 1 and No. 2, No. 3, the Marble Book, and the Hotel Register, and from such examination, by comparison, he testified he had arrived at the conclusion that the signature on Paper A was not the signature of Warren Fuller. He then gave the reasons upon which he based his conclusion, and in doing so used and referred to the photographic copies of Exhibits A, No. 1, No. 2, and of the name on the Hotel Register, also the Marble Book and Diary, in the presence of the jury. During a portion of the time he was on the stand as a witness the jury had in their possession, for examination, the Marble Book, Diary, Paper A, and the note and receipt declared upon, and the photographs and signatures and papers above referred to. When the jury retired for consultation they took all the photographs, papers, and books herein referred to with them to the jury-room.

Plaintiff introduced witnesses who testified that they saw Warren Fuller sign Paper A.

The court, among other things, charged the jury as follows: "On the question of handwriting, the law allows several tests. One is that parties are at liberty to give the opinion of witnesses who have seen a party write, and are acquainted with his handwriting. Some evidence of that character has been introduced into this case. That is all to be weighed by you in passing upon this question of handwriting. Another test is by comparison, and that is probably regarded as usually of the most satisfactory character,—by comparing the signature that is claimed to be forged with the acknowledged handwriting of the party whose name it is claimed was forged. Both of these tests have been applied in this case. I might here remark that in this comparison of handwriting I think the most satisfactory comparison that can be made is of the writing of the party near the time that it is claimed the forged instrument was executed. They have introduced testimony in reference to the register which was written in the day before, and some papers that were executed within a few months before. I say a comparison with those signatures, and with that writing, in my judgment, is more satisfactory than a comparison of the writing of Warren Fuller made years before. We all of us know that when we form a handwriting in use it will change with years. If we write very much our hand is more liable to change, perhaps, but still there are the same characters generally,—the same general form of making letters. Still the test is not as satisfactory to compare the writing of previous years as it is with writing made just about the time that the paper claimed to be forged is claimed to have been executed. You have a large amount of Warren Fuller's writing here, going back as early as 1870 in the Marble Book. You have his signature to these two papers that I have alluded to that are admitted. You have had his diary; the entry in the register at the Pavilion Hotel. You are to take all of these, and compare them with the signature of this paper that is claimed to have been forged, in coming to a conclusion whether this is a forgery or not." To which plaintiff excepted.

And without submitting to the jury, except as is shown in the language of the court upon the ruling, as to the admissibility of Papers No. 1 and No. 2, hereinbefore quoted and referred to, the question whether Warren Fuller...