Sanborn v. Cole
| Decision Date | 25 September 1891 |
| Parties | CHARLOTTE SANBORN v. JOHN T. COLE |
| Court | Vermont Supreme Court |
MAY TERM, 1891
Assumpsit. Plea, the general issue with notice of special matter. Trial by jury at the June term, 1889, Royce, Ch. J presiding. Verdict and judgment for the plaintiff.
Judgment affirmed.
J P. Lampson, for the defendant.
The defendant is sued as the maker of five promissory notes. The signature to the notes consists of the defendant's name, with a cross designated as his mark. The name of H. Perkins appears upon each note as the signature of a witness. The defendant denied the execution of the notes, and put the plaintiff upon her proof. To establish the controverted fact, the plaintiff was permitted to show that the name "H. Perkins" was in the handwriting of one Hiram Perkins, and that said Perkins had deceased; and upon this showing, without other proof of execution, the notes were received in evidence.
The English rule requires that the execution of an attested writing shall be established by the testimony of the attesting witness, or, in case of his death, disability, or absence from the jurisdiction, by proof of his handwriting. Barnes v. Trompowsky, 7 Term. R. 265; Call v. Dunning, 4 East 53; The King v. Harringworth, 4 M. & S. 350; Whyman v. Garth, 8 Exch. 803. In this country the English rule has been closely adhered to in some States, while in others it has been variously modified and restricted. Brigham v. Palmer, 85 Mass. 450; Hall v. Phelps, 2 Johns. 451. It has been held in this State that when an attestation is not necessary to the operative effect of the instrument, proof of the handwriting of a witness who cannot be produced may be dispensed with, and the paper be received in evidence upon proof of the hand of the contracting party. Sherman v. Transportation Co., 31 Vt. 162. But the case contains no intimation that proof of the handwriting of a deceased or absent witness is not sufficient evidence of the execution of an attested writing. We think the rule that a writing shall be admitted in evidence upon such proof remains undisturbed in this State.
This being the evidence upon which papers signed in the ordinary way are admitted, we see no reason why other or further proof should be required when the signature is by mark. It is considered that the attesting witness is selected by the party as the person through whose testimony, or by proof of whose hand in the event of his decease, the authenticity of his own signature may be shown. Especial value attaches to proof of the hand of a witness when the signature of the contracting party is by mark, from the fact that in such cases evidence as to the signature is more difficult to procure and of less certainty when obtained. If it were the general rule that proof of the signature of the maker should be required in addition to proof of the handwriting of the witness, it might well be urged that the rule should be relaxed when the signature is a cross. There is so little room in the use of this simple character for the development of settled individual peculiarities, that proof of such a signature by identification or comparison must ordinarily be very unsatisfactory. It has, indeed, been questioned whether such evidence is of sufficient value to be entitled to admission. We find no support for the claim that the holder of a paper thus signed must furnish more evidence of its execution than is required in the case of an ordinary signature. 1 Best Ev. 327; 1 Dan. Neg. Inst. s. 112; Lyons v. Holmes, 11 S.C. 429.
Sanborn, the payee of the notes, died long before the suit was brought, and the plaintiff became the owner of the notes upon the settlement of his estate. The defendant claimed that his wife as his agent did whatever business had been done with Sanborn in connection with the notes. His offers to prove this agency by his own testimony and that of his wife were properly excluded. The defendant could not testify in his own favor because the other party to the contract in issue was dead. R. L. 1002. Insurance Co. v. Wells, 53 Vt. 14. His wife could not be a witness in the suit unless she was the agent of her husband in the transaction of the business. R. L. 1005; Carpenter v. Moore, 43 Vt. 392. It was therefore necessary to establish her agency before she could become a witness. She was not a competent witness to show herself within the exception to the general disqualification. Persons prima facie competent, whose competency is questioned, may be examined on the voir dire in support of their competency, but persons prima facie incompetent, cannot testify until their competency has been otherwise established.
In Fay v. Green, 1 Aik. 71, the depositions of certain persons disqualified by interest, unless their interest had been discharged, were received in evidence on the strength of their own testimony therein that such interest had been discharged. The court considered that the testimony by which the interest was removed was the testimony of interested witnesses, and should not have been received. The rule has been recognized in many cases. Botham v. Swingler, 1 Esp. 164; State v. Townsend, 2 Harr. 543; Mott v. Hicks, 1 Cow. 513, 535; Stevenson v. Mudgett, 10 N.H. 338; Bank v. Mersereau, 3 Barb. 528.
Testimony that for a period covering the time of this transaction the defendant's wife did all his business, would be evidence tending to show that she was his agent in this transaction. If the testimony which could have been given by the son under the defendant's offer would have covered such a period, it was error to exclude it. But if his testimony could have related only to a later period, its exclusion was not error. The exceptions are not clear upon this point, but from what appears in them it seems probable that the age of the son was such that the proposed testimony could have referred only to a later period.
The five notes are all of the same date, and are written one below another upon the same sheet. The note maturing last fell due in 1876. The endorsements made previous to October, 1879, are so entered upon the back of the sheet as to be placed on separate notes, and are without words indicating an intention to extend the application to other notes. The endorsements dated October 8, and December 27, 1879, are so entered as to be upon one note, but are written where entries would naturally be made upon the paper as folded, and read, "Received on the within notes." The last two endorsements are so extended across the sheet as to be upon all the notes but one, and read, "Received on the within notes." Upon the note not reached by the writing so extended a separate endorsement was made.
The defendant claims that the endorsements of October 8, and December 27, must be treated as applied on the note upon the back of which they are written, and that the endorsements extended across the back of four of the notes must be treated as applied upon the note on which the entires commence. It is insisted that when a payment is so made as to justify an application by the creditor upon more than one note, such an application can be accomplished only by endorsing the amount paid in separate sums upon the several notes. We are not disposed to so hold. The application here is made in terms upon the "within notes," and we do not think the language of the endorsement is made ineffectual by its position. When notes are held in the form shown here, and an endorsement is made in the words and in either of the methods above stated, we think it must be treated as a valid application upon all the notes covered, provided the payment was so made as to justify such an application.
It is held in this State that when a debtor makes a general payment to a creditor who holds several notes...
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