Sankey v. Cook

• Court: Iowa Supreme Court
• Writing for the Court: GRANGER
• Citation: Sankey v. Cook, 82 Iowa 125, 47 N.W. 1077 (Iowa 1891)
• Decision Date: 03 February 1891
• Parties: SANKEY v. COOK.

82 Iowa 125

47 N.W. 1077

SANKEY

v.COOK.

Supreme Court of Iowa.

Feb. 3, 1891.

Appeal from district court, Jasper county; D. RYAN, Judge.

Proceeding in probate by which it is sought to establish the liability of the estate on a lost written contract. From the action of the district court allowing the claim, the defendant appealed.Meredith & Ogg and Clements & Ward, for appellant.

H. S. Winslow, for appellee.

GRANGER, J.

The defendant is the administratrix of the estate of S. C. Cook, deceased. The contract on which recovery is sought was executed by S. C. Cook to the plaintiff, and was lost, while being used in the taking of certain depositions in another case at Wichita, Kan. The pleadings put in issue the genuineness of the signature of S. C. Cook to the contract. One W. S. Walton was used by the plaintiff as an expert to testify to the genuineness of the signature to the contract by comparison. The standard for comparison was a letter signed, “S. C. Cook,” which the plaintiff testified was in the handwriting of S. C. Cook. Plaintiff also testified that in January, 1888, he showed to Walton the original contract; and that it was written by S. C. Cook. Mr. Sankey also testified that he was acquainted with the handwriting of Mr. Cook. Upon this showing as to the genuineness of the standard, Mr. Walton was permitted to state that in his opinion the letter presented to him, and the contract that he saw in January, 1888, were in the same handwriting. The testimony of plaintiff was by deposition, and the defendant moved to suppress the part showing that the letter and contract were in the handwriting of Cook, which was overruled, and defendant complains of the ruling. The motion should have been sustained. It does not appear that plaintiff saw Cook write the papers used as standards. The genuineness is established alone upon his opinion thereof, based on his knowledge of Cook's handwriting. The most that can be said is this: that Walton was of the opinion that the two writings were executed by the same hand, based on the opinion of Sankey that one was genuine. Code, § 3655, is: “Evidence respecting handwriting may be given by comparison made by experts or by the jury with writings of the same person which are proved to be genuine.” Before the comparison can be made by the expert or jury, the genuineness of the standard writing must be proved, established, and no longer a question of fact in the case. It should be so that the court can say to the jury that the standard, as a matter of law, is genuine, and leave to the jury the inquiry whether the disputed signature was written by the same hand. Such a conclusive condition, as to genuineness, does not arise from opinions based on knowledge of handwriting. This court has said that evidence of experts, from comparison of handwriting, is of the lowest order of evidence, and unsatisfactory. Whitaker v. Parker, 42 Iowa, 585. This court has also said: “It appears to us that the genuineness of the writing made the basis of comparison, called sometimes the ‘standard writing,’ should be proved by direct and positive evidence.” Winch v. Norman, 65 Iowa, 186, 21 N. W. Rep. 511. And in Hyde v. Woolfolk, 1 Iowa, 162, it is said: “Two obvious methods of proving the standard are-- First, by the testimony of a witness who saw the person write it; and, secondly, by the party's admission when offered by himself.” It is said these may not be the only ways of making such proof, but they indicate what is understood as “positive evidence.”

2. It is urged that the testimony of plaintiff was incompetent, under the provisions of Code, § 3639, the defendant being an executor, and that the testimony as to the writings was in regard to a personal transaction between the parties. Both the letter and the contract pertained to personal transactions between the parties, and what might have been the effect, if he had testified that he saw Cook sign them, or that he did sign them, we need not decide. His testimony was to the effect that, in his opinion, Cook signed them, basing the fact on his knowledge of Cook's handwriting. That was not testifying to a personal transaction within the meaning of the statute. The object of the statute is to so close the lips of the living party to the transaction that he cannot give testimony in regard thereto; that, because of the decease of the other party, he cannot dispute, if untrue. If Cook was alive, he could not dispute Sankey's evidence that, in his opinion, the papers were in his (Cook's) handwriting; that is, it is not so in the nature of a personal transaction that he could dispute it as such. It is but evidence of a...