Sturdivant Bank v. Wright
| Decision Date | 20 June 1914 |
| Citation | 168 S.W. 355,184 Mo.App. 164 |
| Parties | STURDIVANT BANK, Appellant, v. T. O. WRIGHT et al., Respondents |
| Court | Missouri Court of Appeals |
Argued and Submitted, June 4, 1914,
Appeal from Stoddard Circuit Court.--Hon. W. S. C. Walker, Judge.
AFFIRMED.
Judgment affirmed.
Oliver & Oliver for appellant.
(1) The court erred in refusing to give plaintiff's instruction number 2. Plaintiff was entitled to have the jury instructed that in determining the credibility of the witnesses they might take into consideration their interest in the result of the suit. Bunker v. Hibler, 49 Mo.App. 563; R. S 1909, Sec. 6354; Thompson on Trials (2 Ed.), sec. 2418. (2) The court erred in giving defendants' third instruction. The instruction as given, coupled two abstract statements of law that might be proper in some cases, but which, when coupled and united with the conjunctive phrase "and in this connection," could have but one effect, that being to prejudice the jury, unfairly discredit and destroy the effect of the testimony of the hand-writing experts introduced in behalf of the plaintiff. State v Buchler, 103 Mo. 203; Evans v. Railroad, 16 Mo.App. 522; McCormick v. City of Monroe, 64 Mo.App 197. (3) The court erred in giving defendants instruction number 2, which told the jury the burden of proof was upon the plaintiff bank. The answers filed by defendants are insufficient to cast the burden of proving the execution of the note on the plaintiff. The answers aver that the defendant "did not sign and deliver to the said Sturdivant Bank the note in the petition described." The Legislature in using the word "execution," had reference to "the manual signing of the instrument, and not to the act of delivery." Hammerslaugh v. Cheatham, 84 Mo. 13; Smith Company v. Rembaugh, 21 Mo.App. 390. This section is in contravention of the common law and must be strictly construed. Having thus failed to file such a verified answer as is provided for in Sec. 1985, R. S. 1909, the execution of the note sued on was admitted, and the plaintiff was entitled to judgment on the pleadings and it was error to instruct the jury that the burden of proof was on the plaintiff. Lore v. Ins. Co., 92 Mo.App. 192; Faircloth v. Tinsley, 83 Mo.App. 586; Smith v. Rembaugh, 21 Mo.App. 390; Zervis v. Unnerstall, 29 Mo.App. 474. (4) The court erred in admitting incompetent, irrelevant and immaterial evidence. (a) The court erred in permitting A. H. Burlison, one of the defendants, to testify that E. O. Braley left the county twenty days after the execution of the note. This testimony was wholly immaterial and was introduced for the sole purpose of suggesting inferentially to the jury that E. O. Braley had committed a forgery by signing defendants' names to the note sued on and that he had in a very short time thereafter left the county and had never been heard from since. The fact of Braley's leaving tended to prove no issuable fact and should not have been admitted. (b) The court erred in permitting Levi Burris to testify after he had violated the order of the court excluding witnesses from the court room. This witness was intelligent and fully understood the force of the court's order. His testimony was highly prejudicial to the bank. His feeling against the bank is shown in the first and sixth questions and answers on page forty-three of the abstract. Brown v. McDaniel, 140 Mo.App. 522. (c) The court's voluntary statement or comment that "I don't see how a man can recollect things that never happened" was fatal error.
Wammack & Welborn for respondents.
(1) If the opinion of the jury as to the identity of the signatures upon the exhibits is to be supplanted by that of other witnesses, posing as experts, then the law should provide in such cases that such an issue of fact is to be determined, not by the ordinary jury, but by experts called as witnesses by the plaintiff. The jury saw respondents upon the witness stand and heard them testify and it was their peculiar province to say whether or not they were men whose testimony upon the point in controversy, the jury would accept as credible. In such a case as this this court will not interfere with the verdict of the jury. Dillender v. Lester, 155 Mo.App. 558. (2) The appellant complains of the failure of the court to give an instruction which told the jury that they were the sole judges of the credibility of the witnesses and in determining the credibility of the testimony of a witness, they might take into consideration the interest of the witness in the suit. This instruction is erroneous as a general proposition, as it in nowise meets the requirements of law as to an instruction upon the credibility of the witnesses. Furthermore, the interested parties in this case were offered by the appellant itself as its own witnesses and the rule is well settled in this State that where one offers even the adverse party in a suit as a witness, he cannot afterwards impeach said witness's credibility. Chandler v. Fleeman, 50 Mo. 239; Claflin v. Dodson, 111 Mo. 195; Bensberg v. Harris, 46 Mo.App. 404.
This action is upon a note for $ 670, payable sixty days after date, dated September 11, 1899, bearing interest at eight per cent per annum from maturity, and purports to be signed by E. O. Braley, L. Burris, T. O. Wright, A. H. Burlison, F. H. Wright and T. J. Wright, the name of the latter purporting to be signed by mark (X). The action was begun on October 8, 1909, and is against T. O. Wright, F. H. Wright and A. H. Burlison, who were all served with process. A credit of $ 148.18 was entered on the back of the note as of date March 11, 1901. Judgment was asked against defendants for the balance and interest. Burlison and the two Wrights answered under oath that they "did not sign and deliver to the said Studivant Bank the note in the petition described and filed with said petition."
There was a trial before the court and jury, at which trial plaintiff introduced evidence tending to prove that the money represented in the note was loaned by the bank to Braley and Burris on their credit and that of the other purported makers. Plaintiff introduced in evidence papers bearing the signatures of two of the defendants, which had been filed in connection with presentation of claims against Burris, who had been adjudged a bankrupt, the papers consisting of affidavits to proofs of the claim, admittedly signed by the Wrights, also a power of attorney signed by one of them, and also the answers in the case signed and sworn to by each of the defendants. These papers, admitted or proved to bear the signatures of defendants, and the note in controversy were submitted to a number of witnesses, who, testifying as experts in handwriting, gave it as their opinion that the signatures of the defendants to the notes were apparently written by the same parties who had signed these papers. Some of these witnesses, on cross-examination, however, admitted that while there were points of similarity in the signatures, there were points of dissimilarity, but in their opinion the signatures on the papers and on the notes were by the same parties.
The president of the bank, who had been that or cashier for over forty years, and who was the individual who represented the bank in making the loan, testified that the transaction was mainly with Burris; that he, the cashier, had not seen the defendants sign the note; had had no dealings with them, but, testifying as an expert in handwriting, he gave it as his opinion that comparing the signatures on the note with those on the other papers, that they were the signatures of the defendants. He further testified that the money represented in the note had been turned over directly to Burris, either by handing it to him or remitting it by mail.
The defendants were placed upon the stand and examined by plaintiff as witnesses in its behalf. Each of them testified in the most unequivocal and emphatic manner that the signatures to the note were not theirs; that they had never signed this note, or any such note; had never signed a note of such an amount for any one; had no dealings with Braley or Burris calling for any such act, and had never in any way ratified the transaction; did not know that it was claimed that they were on the note until they were written to about it by the attorney for the bank a short time before the suit was instituted.
It further appeared that at the time this note was given, defendants were hauling logs to the mills conducted by Braley and Burris; were then small farmers, with no considerable means and while occasionally going on notes for small amounts for their friends, one of them going on a note for Burris or Braley for a small amount, about $ 50, that they had never undertaken any obligation of the amount here represented, one of them saying that at that time he was not worth any such sum.
One of the makers of the note, Burris, subpoenaed as a witness by plaintiff, but put on the stand by defendants, contradicted the testimony of the president of the bank, to the effect that he, with Braley, had negotiated for the loan, the witness Burris testifying that he had never negotiated the loan and had never said a word to the president, then cashier, about it; had never seen him but once, and that was the year previous; that the loan was negotiated by Mr. Braley himself and that he (witness) signed it; that he knew the names of defendants were on the note, but did not know their signatures, did not see them sign, and did not know as a fact whether any of them had signed it.
One of the defendants testified that about October 1, 1909, Braley had left the country, and as far as the witness knew, had never been...
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