Tucker v. Kellogg

• Decision Date: 19 January 1892
• Court: Utah Supreme Court
• Parties: JAMES TUCKER, APPELLANT, v. M. M. KELLOGG AND OTHERS, RESPONDENTS

28 P. 870

8 Utah 11

JAMES TUCKER, APPELLANT, v. M. M. KELLOGG AND OTHERS, RESPONDENTS

Supreme Court of Utah

January 19, 1892

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

Reversed and remanded.

Mr David Evans, for the appellant.

Mr George Sutherland, for the respondents.

ZANE C. J. ANDERSON, J., and MINER, J., concurred.

OPINION

ZANE, C. J.:

This action was instituted upon a promissory note purporting to have been executed by the late J. M. Drake for the payment of $ 2,100 to J. M. Martin, and assigned by the latter to the plaintiff. The defendants denied its execution, and that issue was tried by a jury, who found the issue for the defendants, and a motion for a new trial by the plaintiff was denied, and a judgment was rendered by the court on the verdict. To this action of the court the plaintiff excepted and appealed.

The evidence upon the issue of fact as to the signature on the note was conflicting. The witness, Kellogg, stated that he had never seen Drake write, but that a large number of checks and notes were in his possession,--probably five hundred,--that he supposed were paid by him. The signature to them purported to be his. They were found among his papers after his death, and came to witness' hands as administrator of his estate. That he had examined them, and from all this information he stated that he could say he was acquainted with Drake's signature. That he had seen the note sued on, and inspected the signature to it. Witness was then asked by plaintiff whether, in his opinion, the signature was in Drake's handwriting. To this question the defendants objected that the evidence did not show that he had sufficient information to qualify him to express the opinion asked for. The objection was sustained, and the plaintiff excepted, and assigns the ruling of the court sustaining the objection as error. The fact that the notes and checks were in Drake's possession at the time of his death raised the presumption that he had paid them, and, if so, he thereby recognized his signature to them as genuine. It was the duty of the witness to examine papers coming to his hands as administrator, and it appears that he did. The witness doubtless became more familiar with the signature of Drake in this way than he would have become from seeing him write once. We have no doubt that the witness, from the examination of the signature of intestate to the various papers so coming into his hands, gained sufficient knowledge to qualify him to express the opinion asked for. The court said in the case of Rogers v. Ritter, 12 Wall. 371, 20 L.Ed. 417, that "the text-writers all agree that a witness is qualified to testify to the genuineness of a controverted signature if he has the proper knowledge of the party's handwriting. The difficulty has been in determining what is proper knowledge, and how it shall be acquired. It is settled everywhere that, if a person has seen another write his name but once, he can testify, and that he is equally competent if he has personally communicated with him by letter, although he has never seen him write at all. But is the witness incompetent unless he has obtained his knowledge in one or the other of these modes? Clearly not, for in the varied affairs of life there are many modes in which one person can become acquainted with the handwriting of another, besides having seen him write or corresponded with him. There is no good reason for excluding any of these modes of getting information; and if the court, on the preliminary examination of the witness, can see that he has that degree of knowledge of the party's handwriting which will enable him to judge of its genuineness, he should be permitted to give to the jury his opinion on the subject." To the same effect is Bank v. Root, 2 Met. (Mass.) 523; Tuttle v. Rainey, 98 N.C. 513; 4 S.E. 475; Durnell v. Sowden, 5 Utah 216; 14 P. 334.

It also appears from the record that counsel for plaintiff offered to show the witness Dusenbury, who was cashier of the First National Bank of Provo City,...