Winch v. Norman

• Decision Date: 04 December 1884
• Parties: WINCH v. NORMAN
• Court: Iowa Supreme Court

21 N.W. 511

65 Iowa 186

WINCH v. NORMAN

Supreme Court of Iowa, Des Moines

December 4, 1884

Appeal from Harrison Circuit Court.

ACTION upon a promissory note. The defendant pleaded usury. In addition he pleaded a counter-claim for damages alleged to have been sustained by the publication of a libel. The jury found the note to be usurious in part. They also found that the defendant was entitled to damages upon his counter-claim and rendered a verdict for the defendant for $ 207.34. Judgment having been rendered upon the verdict, the plaintiff appeals.

REVERSED.

J. W Barnhart, for appellant.

S. H Cochran, for appellee.

OPINION

ADAMS, J.

The libel set up in the defendant's counter-claim is alleged to have consisted in a publication made by sending through the mail, to one Louisa Vandusen, a postal card in these words: "My friends tell me you put your name to a security bond for your neighbor. I should think that you had enough of that business through life. He don't own or hold a cent in his name. Take your name off, sure. [Signed] F. F."

There was no direct evidence that the plaintiff wrote the postal card, but witnesses who were familiar with the plaintiff's signature testified in substance that they thought that there was some resemblance between the plaintiff's writing and a part of the writing on the postal card; and others testified as experts to a resemblance between what was admitted to be the plaintiff's writing and a part of the writing on the postal card. Among the witnesses examined in relation to the handwriting was one Hyde. He testified that he was familiar with the signature of the plaintiff, but not with his general handwriting, and that he thought that there was a resemblance between one letter on the postal card and the plaintiff's writing. He was also examined as an expert for the purpose of comparing certain admitted writing of the plaintiff with another postal card addressed to one Topping, and signed "J. W.," and was allowed to testify, against the objection of the plaintiff, that he saw a resemblance between one letter in the Topping card and the plaintiff's admitted writing. The Topping card was then admitted in evidence to the jury, against the plaintiff's objection, for the purpose of enabling them to make a comparison between it and the alleged libelous card addressed to Louisa Vandusen.

The plaintiff contends that Hyde did not show himself to be qualified to testify as an expert from a comparison of plaintiff's admitted writing with the Topping card; and even if he had been qualified, that it was error to allow the Topping card to be admitted in evidence for the purpose of a comparison to be made by the jury. Upon the question as to whether Hyde showed himself qualified to testify as an expert, we have to say that we find no evidence, except the witness' statement that he was the clerk of the courts of Harrison county. Without determining whether a person might...