Tower v. Whip
| Decision Date | 11 April 1903 |
| Citation | 44 S.E. 179,53 W.Va. 158 |
| Parties | TOWER v. WHIP. |
| Court | West Virginia Supreme Court |
Submitted September 8, 1902.
Syllabus by the Court.
1. In an action upon a promissory note, when the defendant denies its execution, an expert as to handwriting may compare the signature to the note with the defendant's signature to pleas signed and sworn to by him and filed by him, and express his opinion whether the same person made the signature to the notes and pleas.
2. The allowance of bad pleas is harmless error, if no evidence is given under them.
3. A plea that a negotiable note signed by a party was procured by deception and fraud, in representing it to be a paper of different character, is not good against a holder for value acquired in due course of business before maturity, unless the plea aver notice to the holder of such fraud and deception before he acquired the note.
4. Inconsistent or irrelevant instructions should not be given.
5. A judgment rendered by a special judge elected as provided by law is neither void nor reversible merely because he did not take the oath in Article 4, § 5, of the Constitution. He is at least a judge de facto.
Error from Circuit Court, Mineral County; R. W. Dailey, Judge.
Action by M. C. Totten against Sandford Whip. Judgment for plaintiff, and defendant brings error. On death of both parties, personal representatives were substituted, to wit E. E. Tower as plaintiff, and E. J. Whip as defendant. Reversed.
Taylor Morrison and C. N. Finnell, for plaintiff in error.
F. M Reynolds, for defendant in error.
This was an action of debt, tried before a special judge, on a negotiable note, in the circuit court of Mineral county brought by M. C. Totten against Sandford Whip, resulting in a verdict and judgment for the defendant, from which he has sued out a writ of error.
The defendant pleaded nil debet, and filed a plea (No. 3) saying that "he did not make or sign the note sued on," which was verified by affidavit. The defendant also filed two special pleas (Nos. 2 and 4), to the effect that a person unknown to Whip, pretending to be a dealer in land and a purchaser of farms, came to Whip's house, and falsely represented that he wished to buy Whip's farm, and, with intent to defraud, so ingratiated himself into the confidence of Whip that he agreed to sell his farm, and to close the bargain in two weeks; that said unknown person suggested that, in case he should not be able to meet Whip within that time, it would be necessary that he should have Whip's post-office address, and requested him to make a memorandum of it, and presented to Whip what he supposed to be a common note or memorandum book, and on the faith that what he was about to write was only such post-office address, and without intention to make any such note as that sued upon, he (Whip) did sign a paper of the character represented--a mere memorandum of his postoffice address, and not as a note--and that said unknown person fraudulently covered up the note and concealed its contents so that he (Whip) did not and could not know that he was signing a note, and that thus his signature to the note, if it was his signature, was obtained, and therefore he did not knowingly make the note, and that he was tricked into making it; and that the note was without consideration. The defendant filed plea No. 4, to the same effect; averring the note, under the facts of fraud and false pretense, to be a forgery, and that the plaintiff was not a purchaser of the note for value before maturity.
Objection is made to plea 3 on the ground that it does not deny the fact that the signature to the note is the signature of Whip. This point is not tenable. The plea says that Whip did not "make or sign" the note. If he did not make or sign it, it is not his note, for then he neither made it himself, nor authorized another. Section 40, c. 125, Code, only requires that, where a pleading alleges that a person "made" a writing, the affidavit shall deny the making. The affidavit is as broad and definite as the statute demands. This plea was not necessary, but is good in itself, and operates also as an affidavit to accompany the plea of nil debet, which at common law puts the execution of the note in issue; and the effect of that plea remains such yet, with the qualification that said affidavit must be filed with plea.
The vital question in this case is, did Whip make the note? He denied doing so, by pleas 1 and 3. On the trial the plaintiff offered a witness as an expert, and proposed that he inspect Whip's signature to the affidavits of the four pleas filed by him, and the signature of Whip to the note in suit and say whether the same person made them, and proposed to prove by him that, in his opinion, the same person made all the signatures; but the evidence was rejected. In West Virginia it is settled law that the genuineness of an instrument cannot be proven or disproven by comparison with other writings. As a general rule, comparison of handwriting is not allowed. State v. Koontz, 31 W.Va. 127, 5 S.E. 328. I never could see the soundness of this rule, but it was well-settled common law in England until statute wiped it away, and generally, but not everywhere, prevailed in the United States. It came to this state from Virginia. We have always regarded this as the Virginia rule, but, if so, Hanriot v. Sherwood, 82 Va. 1, has overruled it. But concede such to be the law in West Virginia; yet has the Supreme Court said in Moore v. United States, 91 U.S. 270, 23 L.Ed. 346: The disputed paper "may be compared with other writings by such person proved or admitted to be genuine, and already properly before the court for other purposes, either as evidence in the case, or as part of the record." 15 Am. & Eng. Ency. L. 266. The defense on the trial stated that it was not admitted that the signatures to the pleas were in Whip's handwriting, but it was not denied. And is it not presumptive, in the case of a natural person, that a signature to a plea filed in court by him is his own, especially as it is certified to have been subscribed by him before the clerk? And he proffered it as his, and it would be prima facie his until shown not to be his. It would be different with a paper not in the case. Here it was part of the record. Could it be questioned that the jury might compare the note with the pleas? I think not. But our question is, can an expert make a comparison of these papers, and give his opinion? Yes, he can, because, if you once settle that a jury can do so, it is a subject of expert evidence. If the papers are such as to allow a comparison, expert evidence may be applied to them. Vinton v. Peck, 14 Mich. 287, is authority not only to allow comparison with other papers already in the cause, but also to show that experts may be called to make the comparison, and that it is better that the jury have the aid of experts, as few of us are competent to do so with success. 1 Greenl. Ev. § 578, thus states the law: "Where other writings, admitted to be genuine, are already in the case, here the comparison may be made by the jury, with or without the aid of experts." In Hanriot v. Sherwood, 82 Va. 1, expert evidence to make such comparison is held proper. In Springer v. Hall, 83 Mo. 693, 53 Am. Rep. 598, it is held that such expert evidence may be used to compare. This case is cited by the defense to show that comparison cannot be made with papers made after suit, but there the defendant proposed to use his signature to his own pleadings to prove that he did not make the note. Any amount of law can be cited to show that experts may compare writings and give their opinions. Rogers, Expert Test. § 133; State v. Thompson (Me.) 13 A. 892, 6 Am. St. Rep. 172. Much case law is cited to show that expert testimony is weak and unreliable. This may or may not be so. Courts differ as to this. Many regard it valuable, as...
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