Williams v. Drexel

• Decision Date: 24 January 1860
• Citation: 14 Md. 566
• Parties: EMILY WILLIAMS v. FRANCIS M. DREXEL.
• Court: Maryland Court of Appeals

14 Md. 566

EMILY WILLIAMS v. FRANCIS M. DREXEL.

Court of Appeals of Maryland.

January 24, 1860

Appeal from the Court of Common Pleas.

Assumpsit brought by the appellee against the appellant, on the 15th of August 1857. The declaration contains six common money counts, and the seventh is upon a bill of exchange for $402.53, drawn by Thomas W. Williams payable to the order of Thomas W. Williams, by him endorsed and afterwards accepted by the defendant. Plea, that the defendant never was indebted to the plaintiff as alleged.

Exception.--The facts of the case and the instruction asked for by the defendant and refused by the court, (Marshall, J.,) are fully stated in the opinion of this court. The verdict and judgment were in favor of the plaintiff and the defendant appealed.

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, JJ. T. P. Scott for the appellant.

1st. In a suit by the indorsee against the acceptor of a bill of exchange, the handwriting of the payee, must be proven, and although the drawee by acceptance admits the signature of the drawer of the bill, yet acceptance of the bill does not admit the handwriting of the payee in the endorsement, even when the bill is payable to the order of the drawer. Chitty on Bills, 628, 629. 3 Phillipp's Ev. 18, (Ed. 1829.) Bosanquet v. Anderson, 6 Esp. 43. Wayman v. Bend, 1 Camp. 175. Robinson v. Yarrow, 7 Taunt. 455. In this case there is no evidence that the payee and the drawer are one and the same person, which gives additional force to the objection here taken. The defendant did not promise to pay, ask for indulgence, or offer to renew the security, but on the contrary, when asked to pay the bill, refused to do so, and said it was to be paid by some one in Philadelphia. She merely admitted her acceptance, and by consequence her legal liability to the legal holder, when his title was established, which could only be done by proof of the endorsement, and of this there was no evidence offered.

2nd. But it is said the jury may compare the handwriting of the endorsement with that of the drawer, which is admitted by the acceptance to be genuine and that this is proof of the endorsement. But such a comparison between the signatures on this bill could not be made, because the bill itself was not in evidence until some proof of the endorsement was given other than the mere comparison of the signatures, and no such proof was offered. The jury therefore had nothing to compare.

Charles Marshall for the appellee.

Two questions are presented by the defendant's prayer, viz:

1st. Was there any evidence of the endorsements?

2nd. Was there any evidence to sustain any of the common counts?

It is not proposed to discuss the second point, but to submit it upon the evidence, from which it is submitted the jury might well have found a subsisting indebtedness of the defendant to the plaintiff, acknowledged and recognized by the defendant sufficiently to support the counts for money loaned, had and received, paid, laid out and expended, and found due on an account stated. Chitty on Bills, 581, (9th Ed.) Bayley on Bills, 358, (6th Ed.) Grant v. Vaughn, 3 Burr. 1516. Black v. Caffee, 3 Selden 281. Purdy v Vermilya, 4 Selden 346. Haviland v. Simons, 4 Richardson 338.

As to the first question, it is material to observe that the seventh count contains several allegations: 1st, the identity of the drawer and payee; 2nd, the endorsement before acceptance; 3rd, the acceptance; and 4th, non-payment. Now the plea is one properly applicable to the common counts and not to the special counts. Act of 1856, ch. 112, sec. 39. That Act, one great object of which was to produce unity and certainty of issue, would seem to require a special traverse, to put in issue any of the allegations of the seventh count. See secs. 49, 52, 54, 62, 76, 77. If the plea be held to be applicable to the seventh count at all, it cannot be held to put all four of the allegations of that count in issue, as such a construction would entail upon our new system of pleading all the inconveniences and uncertainties as to the issue, which the general issue plea produced in the old. The plea must be held to deny the seventh count only on the allegation of indebtedness, and not to put in issue the fact of the identity of the drawer with the payee, which is not involved in the denial of indebtedness, and that fact not being traversed is to be taken as admitted. See sec. 77.

The plea then puts upon the plaintiff the burden of proving the handwriting of the acceptor and endorser, it being admitted that the drawer and payee are identical. And it is conceded that the acceptance even after endorsement, the bill being admitted to be payable to the order of the drawer himself, only admits the handwriting of the drawer and not of the endorsement. The defendant's acceptance is fully proved. This acceptance admits the handwriting of the drawer as is conceded. There was then one piece of writing of Thos. W. Williams in evidence, the genuineness of which was admitted by the defendant. Now, in proving handwriting, it is admitted that, as a general rule, a witness without actual knowledge cannot testify merely from the result of a comparison of a writing shown to him as the writing of a party, with the writing to be proved. But it is contended that the jury always have the right to compare the handwriting of a paper properly in evidence before them, and proved or admitted to be genuine, with the handwriting of another paper offered in evidence as the writing of the same party, and may find the writing to be that of the writer of the first, from such comparison without further evidence on the point. Independently of authority such should be the rule. For none could deny the right of a jury to discredit, or confirm the statement of a witness as to the handwriting of two papers by comparison of the two. And if such comparison did not constitute legal evidence then the jury would discredit a witness on illegal or no evidence. These observations will, of course, be understood as being applicable only to the comparison of two or more papers properly in evidence before the jury and not to extend so far as to maintain the proposition that papers may be offered, irrelevant to the issue for the sole purpose of proving or disproving a disputed handwriting by comparison. The authorities will be found fully to sustain the proposition first laid down. 1 Greenl. Ev. secs. 578, 580, 581. 2 Greenl. Ev. sec. 165. Griffith v. Williams, 1 Cromp. & Jer. 47. Solita v. Yarrow, 1 Moody & Rob. 133. Bromage v. Rice, 7 Carr. & Payne, 548. Waddington v. Cousins, Ib. 595. Jones v. Turnour, 4 Carr. & Payne, 204.

There was then legal evidence in this case, apart from what might be fairly deduced from the testimony of the witness, viz: the evidence resulting from a comparison of the admitted handwriting of the drawer with the handwriting of the endorsement, from which the jury might infer the genuineness of the latter. As before suggested, had a witness deposed that the handwriting of the endorsement was that of Thomas W Williams, and the jury on comparing it with the signature of the drawer, conceded to be the same person, had found the two wholly unlike, their right to discredit the witness upon the evidence afforded by such comparison could not be questioned, and to grant this proposition is to admit such a comparison to furnish legitimate evidence. But, in addition to these considerations, as to the fact assumed by the defendant's prayer, of the entire absence of evidence, there is another view which is entitled to much weight. The bill of exchange, endorsed in blank, was presented to the defendant, and payment demanded in behalf of Drexel. The bill was then in such a condition that mere possession was prima facie evidence of ownership. Whiteford v. Burckmyer, 1 Gill 127, and same case in 6 Gill 16. The defendant then admitted that she had had a correspondence or interview with Mr. Drexel on the subject and expected to get some one in Philadelphia to pay the claim to Mr. Drexel. She recognized...