Stutsman County Bank v. Jones

• Decision Date: 13 January 1917
• Citation: 162 N.W. 402,36 N.D. 531
• Court: North Dakota Supreme Court

162 N.W. 402

36 N.D. 531

STUTSMAN COUNTY BANK v. WILLIAM JONES

Supreme Court of North Dakota

January 13, 1917

Appeal from District Court, Stutsman County, W. L. Nuessle, J.

Reversed.

Judgment reversed, with costs, and a new trial awarded.

W. H Padden (George W. Thorpe and Russell D. Chase, of counsel) for appellant.

It is not necessary that a conversion be alleged in technical terms, but facts stated in the pleading determine whether or not it is a conversion. 21 Enc. Pl. & Pr. p. 1077, and cases; 38 Cyc. 2070, note 13, and cases; Jones v. Winsor, 22 S.D. 480, 118 N.W. 716.

A tort can never be maintained as a counterclaim, especially in opposition to an action on contract, excepting in very few instances. Hanson v. Skogman, 14 N.D. 445, 105 N.W 90; 34 Cyc. 706-710; Braitwaite v. Akin, 3 N.D. 365 56 N.W. 133; Tuthill v. Sherman, 32 S.D. 103, 142 N.W. 257; Hoeven v. Morley, 36 S.D. 421, 155 N.W. 191; Pom. Code Remedies, §§ 669, 670.

If the court permits an amendment which clearly the law does not allow, it is error. 31 Cyc. 373.

Leave to amend should never be granted when it clearly appears that the pleader cannot truthfully do so, or that the application is for the purpose of delay. 31 Cyc. 373, 422; Fay v. Hunt, 190 Mass. 378, 77 N.E. 502.

A party seeking to amend must show good faith in all things. 31 Cyc. 372; Barkley v. Hibernia Sav. & L. Soc. 21 Cal.App. 456, 132 P. 467; Silica Brick Co. v. Winsor, 171 Cal. 18, 151 P. 425; Holbert v. Keller, 161 Iowa 723, 142 N.W. 962.

The rule allowing amendments is broad and liberal, but it should not be abused, as is too often the case. Holbert v. Keller, supra; Davis v. Hibernia Sav. & L. Soc. 21 Cal.App. 444, 132 P. 462.

And in passing upon a motion for permission to amend, the court should not act arbitrarily, but should exercise a sound, legal discretion. 31 Cyc. 370, 373.

The rule of pleading with reference to joinder of causes of action by counterclaim is the same as when the causes are set up in the complaint. McKinney v. Sundback, 3 S.D. 106, 52 N.W. 322.

Cause of action must be related and belong to the same class, if they cannot be united in the same complaint. The same rule applies as to counterclaims in an answer, for they must rest upon the same ground as a complaint. Mares v. Wormington, 8 N.D. 329, 79 N.W. 441; 31 Cyc. 422, and cases cited; Gould v. Gleason, 10 Wash. 476, 39 P. 123; Ballston Spa Bank v. Marine Bank, 16 Wis. 125; Jacobs v. Mexican Sugar Ref. Co. 115 A.D. 499, 101 N.Y.S. 320; Iltis v. Chicago, M. & St. P. R. Co. 40 Minn. 273, 41 N.W. 1040.

But where the proposed amendment directly contradicts other parts of the answer, it can never be allowed. Further, the motion must be made with diligence, and the lack of diligence together with the want of any valid excuse therefor was alone sufficient to warrant the ruling disallowing the amendment. Paulsen v. Modern Woodmen, 21 N.D. 241, 130 N.W. 231; Pratt, H. & Co. v. Tailer, 99 A.D. 236, 90 N.Y.S. 1023; Sunderland, Sel. Cas. on Proc. Code Pl. 695; Barton v. Laws, 4 Colo.App. 212, 35 P. 284; Townsend v. Sullivan, 3 Cal.App. 115, 84 P. 435; Case v. Watson, 22 La.Ann. 350; Wells, F. & Co. v. McCarthy, 5 Cal.App. 301, 90 P. 202; 31 Cyc. 423; Bransford v. Norwich Union F. Ins. Co. 21 Colo. 34, 39 P. 419; Dow v. Blake, 148 Ill. 76, 39 Am. St. Rep. 156, 35 N.E. 761; Newton v. Long, 13 Ky. L. Rep. 698, 22 S.W. 159; St. Clara Female Academy v. Northwestern Nat. Ins. Co. 101 Wis. 464, 77 N.W. 893.

The right to amend should not be made use of to harass the opposing party, or to delay the proceedings. Holbert v. Keller, 161 Iowa 723, 142 N.W. 962.

The authority of a bank officer to make a contract for the bank must be clearly shown before such contract can be offered in evidence. Comp. Laws 1913, § 5150; First Nat. Bank v. Michigan City Bank, 8 N.D. 608, 80 N.W. 766.

Oral evidence of a written contract upon which damages are claimed cannot legally be received. These written instruments were directly in issue, and the admission of such secondary evidence was fatal error. 1 Greenl. Ev. § 88; Johnson v. Kindred State Bank, 12 N.D. 336, 96 N.W. 588; 2 Horwitz's Jones, Ev. § 201.

On cross-examination it is always proper to show the relations of the witness to the case and the parties,--his interest, his motives, and his knowledge of matters about which he testifies. State v. Kent, (State v. Pancoast) 5 N.D. 541, 35 L.R.A. 518, 67 N.W. 1052; Campau v. Dewey, 9 Mich. 381; Ah Doon v. Smith, 25 Ore. 89, 34 P. 1093; Sayres v. Allen, 25 Ore. 211, 35 P. 254; 3 Enc. Ev. 832; Abbott, Civ. Jury Trials, pp. 220, 221; Hogen v. Klabo, 13 N.D. 319, 100 N.W. 847; 1 Thomp. Trials, 2d ed. § 408.

It is the rule that when the signature of a document is directly in dispute, the witness may testify that he saw the alleged subscriber write the identical signature upon the document. But this rule cannot here be applied because it has nothing to do with the question of standards for comparison, for the reason that if the answer applied to collateral instruments and signatures, it would raise a collateral issue as to the execution of such collateral instruments. 1 Wigmore, Ev. §§ 693, 1911, pp. 792, 793.

Witnesses who testify to handwriting must first qualify; and the question of qualification is a question of law for the court. 3 Horwitz's Jones, Ev. §§ 546, 549; 1 Wigmore, Ev. § 693.

"It is the belief which the witness entertains upon comparing the writing in question with its exemplar in his mind, derived from some previous knowledge." 1 Greenl. § 576; Horwitz's Jones, Ev. § 547, p. 603; 1 Wigmore, Ev. § 693.

"All evidence of handwriting, except where the witness saw the document written, is in its nature comparison." 1 Greenl. Ev. § 576; 3 Horwitz's Jones, Ev. §§ 547, 549; 3 Wigmore, Ev. § 1991; 6 Enc. Ev. p. 386.

Where the witness shows that his standard of comparison is his mental conception of the type of handwriting, having seen the party write his name to collateral instruments, his testimony may be received. At best it is the belief of the witness, and its weight is for the jury. 1 Greenl. Ev. § 577; 1 Wigmore, Ev. §§ 693-696, 698; Abbott, Proof of Facts, pp. 509-512; 6 Enc. Ev. p. 370; 3 Horwitz's Jones, Ev. § 546.

"From having seen letters, bills, or other documents, purporting to be the handwriting of the party, and having afterward personally communicated with him respecting them, or having acted upon them as his, the party knowing and acquiescing in such acts, founded upon their genuineness," furnishes foundation for the belief of the witness. 1. Greenl. Ev. § 577; Wigmore, Ev. §§ 699-707, inclusive; Horwitz's Jones, Ev. § 547, especially on p. 605 and cases cited; 17 Cyc. 161, and cases cited.

"It is on this ground that clerks, cashiers, or other officers of banks at which a party has been accustomed to do business, may be competent to prove his handwriting, although they may never have seen him write." Berg v. Peterson, 49 Minn. 420, 52 N.W. 37; 9 Am. & Eng. Enc. Law, p. 273; 3 Horwitz's Jones, Ev. §§ 547, 548, 553, pp. 605, 606; Riggs v. Powell, 142 Ill. 453, 32 N.E. 482; Doe ex dem. Mudd v. Suckermore, 5 Ad. & El. 719, 111 Eng. Reprint, 1338, 2 Nev. & P. 16, W. W. & D. 405, 7 L. J. Q. B. N. S. 33; Wigmore, Ev. 2d ed. p. 269; Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 715; Jones v. Huggins, 12 N. C. (1 Dev. L.) 223, 17 Am. Dec. 567; Amherst Bank v. Root, 2 Met. 532; Salazar v. Taylor, 18 Colo. 538, 33 P. 369; 6 Enc. Ev. 429, and cases; 17 Cyc. 179; Com. v. Eastman, 1 Cush. 189, 48 Am. Dec. 596; Sankey v. Cook, 82 Iowa 125, 47 N.W. 1077; Martin v. Maguire, 7 Gray, 177; Van Sickle v. People, 29 Mich. 61; White Sewing Mach. Co. v. Gordon, 124 Ind. 495, 19 Am. St. Rep. 109, 24 N.E. 1053; Winch v. Norman, 65 Iowa 186, 21 N.W. 511.

"Mere evidence of admission by a party that a writing was his is not enough." 3 Horwitz's Jones, Ev. § 555, p. 628.

"A signature not genuine might be admitted to be so if it would serve the purpose of defense." Rose v. First Nat. Bank, 91 Mo. 399, 60 Am. Rep. 258, 3 S.W. 876; Edmonston v. Henry, 45 Mo.App. 346; State v. Clinton, 67 Mo. 380, 29 Am. Rep. 506, 3 Am. Crim. Rep. 132; 3 Horwitz's Jones, Ev. § 555.

"Such a conclusive condition as to genuineness does not arise from opinions based on knowledge of handwriting." Wince v. Norman, 65 Iowa 186, 21 N.W. 511; Spottiswood v. Weir, 80 Cal. 448, 25 P. 289; Territory v. O'Hare, 1 N.D. 43, 44 N.W. 1003; Moore v. United States, 91 U.S. 270, 23 L.Ed. 346; 3 Horwitz's Jones, Ev. § 554, and cases; 15 Am. & Eng. Enc. Law, 266; Abbott, Proof of Facts, p. 513.

"Irrelevant papers are not admissible in evidence for the sole purpose of furnishing a standard of comparison; but to this rule exceptions are made in those cases where the papers offered are conceded by the opposite party to be genuine, or are such as he is estopped to deny, or where, for other reasons, no collateral issues can be raised by their introduction." Cochrane v. National Elevator Co. 20 N.D. 178, 127 N.W. 725; 15 Am. & Eng. Enc. Law, 2d ed. 268.

The use of specimens is limited in certain jurisdictions to those which are "admitted" to be genuine. The admission must be that of the party, and not of the witness, and made by the pleadings or during the trial, or for the purpose of the trial. 3 Wigmore, Ev. § 2021; Hyde v. Woolfolk, 1 Iowa 159; Merritt v. Straw, 6 Ind.App. 360, 33 N.E. 657; State v. Minton, 116 Mo. 605, 22 S.W. 808; White Sewing Mach. Co. v. Gordon, 124 Ind. 495, 19 Am. St. Rep. 109, 24 N.E. 1053; Swales v. Grubbs, 126 Ind. 106, 25 N.E. 877; 17 Cyc. 165-167; Shorb v. Kinzie, 80 Ind. 500; Ratliff v. Ratliff, 63 L.R.A. 963, and note, 131 N.C. 425, 42 S.E. 887; Tucker v. Kellogg, 8 Utah 11, 28 P. 870.

Where the principle of estoppel permits the...