Rowell v. Fuller's Estate

• Court: Vermont Supreme Court
• Writing for the Court: TAFT, J.
• Citation: Rowell v. Fuller's Estate, 59 Vt. 688, 10 A. 853 (Vt. 1887)
• Decision Date: 15 October 1887
• Parties: I. H. P. ROWELL v. WARREN FULLER'S ESTATE

10 A. 853

59 Vt. 688

I. H. P. ROWELL v. WARREN FULLER'S ESTATE

Supreme Court of Vermont, Orleans County

October 15, 1887

GENERAL and special assumpsit by the plaintiff, as surviving partner of the late firm of J. & H. Rowell, with a count in favor of the plaintiff upon a promissory note owned by him in his own right. Appeal from the disallowance of commissioners. Pleas, general issue, payment, Statute of Limitations and offset, with notice denying the signature to paper "A." Trial by jury, February Term, ROYCE, Ch. J. presiding. Verdict for the defendant.

The following is a copy of the paper marked "A":

"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 I 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 endorsements 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 signing of said paper by intestate was denied by defendant estate. The note and receipt, mentioned in said paper "A" are the note and receipt declared upon.

The evidence of the plaintiff tended to show that Warren Fuller signed the said paper marked "A", and the testimony of the defendant that he did not.

The 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.

The 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 Warren Fuller admitted to be genuine.

This evidence was received against the plaintiff's objection.

Reversed and remanded.

Edwards, Dickerman & Young, for the plaintiff.

By the common law rule, written documents or signatures were never admitted solely to be used as comparison. Lawson Exp. Ev. 229; Rogers Exp. Ev. 192; 1 Best Ev. s. 238; 1 Greenl. Ev. s. 580; Moore v. United States, 91 U.S. 270; Strather v. Lucass, 6 Pet. 763; 27 Md. 36; 96 Penn. St. 489. But whenever a comparison has been permitted, the genuineness of the paper introduced as a standard must first be determined by the court before it is allowed to go to the jury. BENNETT, J., in Adams v. Field, 21 Vt. 256; State v. Ward, 39 Vt. 225; Sanborn v. Osgood, 52 Vt. 309; Lawson Exp. Ev. 371, 407; 115 Mass. 481; Castello v. Crowell, 133 Mass. 354; Bragg v. Colville, 19 Ohio St. 412. It was error in admitting exhibits Nos. 1 and 2. Lawson Exp. Ev. 408, 410; Martin v. Maguire, 7 Gray, 178; Commonwealth v. Eastman, 1 Cush. 217; Moody v. Rowell, 17 Pick. 490; Richardson v. Newcomb, 21 Pick. 317; 22 Kan. 250; 1 Greenl. Ev. s. 581; King v. Donahue, 110 Mass. 156.

The paper with which the comparison is to be made must be unquestionably a genuine paper, and that must be shown beyond a doubt. McKeane v. Barnes, 108 Mass. 344; Bacon v. Williams, 13 Gray, 527; Pavey v. Pavey, 30 Ohio St. 603; 5 Binney, 340. It "must be directly and very clearly proved." PECK, J., in State v. Horn, 43 Vt. 20. A diary taken from a prisoner is not a sufficient standard. GRAVES, Ch. J., in Van Sickle v. People, 29 Mich. 61. The admission of the photographs was error. Hynes v. McDermott, 82 N.Y. 41; 34 Mich. 23; Rogers Exp. Ev. 198; Miller v. Johnson, 27 Md. 36. There was error in the charge that this evidence of comparison was regarded usually as the most satisfactory. It is the least satisfactory. Lawson Exp. Ev. 372; Borland v. Walrath, 33 Iowa 131; 42 Iowa 585; 1 McArthur, 221.

Crane & Alfred, for the defendant.

The papers, Nos. 1 and 2, offered for comparison with the signature in dispute, were properly admitted. Commonwealth v. Coe, 115 Mass. 481; State v. Ward, alias La Vigne, 39 Vt. 225; State v. Hopkins, 50 Vt. 316; Adams v. Field, 21 Vt. 256. Documents are admissible for the purpose of comparison when properly proved to be in the disputed handwriting. Lawson Exp. Ev. 371; SHAW, Ch. J., in Moody v. Rowell, 17 Pick. 490; Bowman v. Sanborn, 25 N.H. 87, 111; State v. Hastings, 53 N.H. 460; State v. Clark, 54 N.H. 451, 461; Carter v. Jackson, 58 N.H. 156; Lyon v. Lyman, 9 Conn. 54; Chandler v. Le Barron, 45 Me. 534; Woodman v. Dana, 52 Me. 9, 13; Adams v. Field, 21 Vt. 256. The photographs were admissible. Marcy v. Barnes, 16 Gray, 161; GRAY, Ch. J., in Blair v. Pelham, 118 Mass. 420; Randall v. Chase, 133 Mass. 210; Cowley v. People, 83 N.Y. 464; People v. Buddensick, 103 N.Y. 487; s. c. 4 Cen. Rep. 787; Barker v. Town of Perry (Iowa Sup. Ct.), 32 Albany Law Journal, 422; s. c. 25 N.W. 100.

It must appear affirmatively, by the exceptions, that the plaintiff called the attention of the court (in such a way that it was legally bound to act) to its omission to charge that the genuineness of the signatures on papers No. 1 and No. 2 was for the jury to determine.

The case not showing this, and the plaintiff having chosen to keep silent then, the judgment will not be reversed by reason of such omission to charge. State v. Straw, 33 Me. 554; Murchie v. Gates (Sup. Ct. of Me.), 4 A. 698, 701; Knight v. Smythe, 57 Vt. 529, 532; State v. Nulty, 57 Vt. 543.

OPINION

The other facts are sufficiently stated in the opinion of the court.

TAFT, J.

I. In this State the signature of a party may be proved to be genuine or false by a comparison of it with another genuine signature. Butler v. Dixon, Chit. Co. 1832 (not reported), cited in 21 Vt. 256 at 264; Gifford v. Ford, 5 Vt. 532; Adams v Field, Ex'r, 21 Vt. 256; State v Ward, 39 Vt. 225; State v. Horn, 43 Vt. 20; State v. Hopkins, 50 Vt. 316; Sanderson v. Osgood, 52 Vt. 309. The signature with which the comparison is made, before it can be used, should be established as a genuine one. As stated in Adams v. Field, Ex'r, supra, its genuineness "must either be admitted or established by clear, direct, and positive testimony." Unless this is in the first instance done, the testimony should, for obvious reasons, be excluded. The question arose upon the trial in this case, whether exhibits numbers one (1) and two (2) were genuine signatures or not. The defendant claimed that the question should be submitted to the jury, while the plaintiff insisted that it should be determined by the court. The court, without deciding whether the signatures were genuine, admitted them in evidence, and let them go to the jury, stating that "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." Thus the question of the genuineness of the signatures was submitted to the jury. Was this action correct, or should the question in the first instance have been determined finally by the court? We are not aware that the question has been authoritatively decided in this State. In the first reported case, Gifford v. Ford, supra, the signature with which the comparison was made was an admitted one; therefore the question whether it was the province of the court or jury to determine it, did not arise. In Adams v. Field, Ex'r, supra, the question was, were genuine signatures admissible for the purposes of comparison; and the remarks of BENNETT, J., are consistent with either view of the question now under consideration. He says the genuineness of the signature should be shown before it can be used as a comparison; but he does not say by whom the question of its genuineness should be determined. The only other case in this State, to which our attention has been called, in which the question has been referred to, is the one above cited of State v. Ward; and if the question at issue here was before the court in that case, it may be regarded as settled. An examination of that case shows that the question was not made in the case, nor discussed by counsel. The prosecution offered in evidence two letters signed "Jerome Lavigne," containing evidence against the respondent, if written by him. To show that they were in his handwriting, the prosecution, the exceptions state, "established by proof other letters as standards for comparison." The letters, therefore, were established before the court, not the jury; for it was done during the trial, and before the testimony of the experts was given. The experts then testified that all the letters, and the handwriting taken from the person of the respondent, were written by the same hand. No exception was taken to the determination of the genuineness of the signatures by the court instead of the jury; and it is apparent from the language of the court in the opinion that the court determined the question finally; for it is stated that "the court having adjudged the papers genuine , and having permitted them to go to the jury." It appears, therefore, that the letters offered as comparisons were adjudged by the court to be genuine, and no exception taken save that the proof did not establish the fact. This could not avail the respondent, if the testimony tended to show it, and what question could there be in this respect, as the evidence consisted mainly of the testimony of witnesses who swore that they saw the respondent write the letters which...