62 Me. 194 | Me. | 1873
This is an action upon a promissory note in the name of an indorsee, who claims as a bona fide holder for value, without notice of any infirmity in the note, and for aught that appears, is such. One of the defences set up is that the note was procured by fraud. Under these circumstances it is contended that the defendant who is the maker, is not a competent witness to prove the fraud, until he has first shown that the plaintiff had notice of it. In Walton v Shelley, 1 T. R., 296, it was decided that a party, to a contract, not interested in the result of the suit, was on the ground of public policy, inadmissible as a witness to prove fraud in its inception. Subsequently in Bent v. Baker, 3 T. R., 27, the rule was held applicable to negotiable paper only,' and in a still later case, Jordan v. Lashbrooke, 7 T. R., 601, Walton v. Shelley was overruled, and since that, in England, a party to negotiable paper has in no case been excluded as a witness for the reason of his being a party.
In this country the. law has been differently settled in different States. In Massachusetts the question came before the courts in the early case of Churchill v. Suter, 4 Mass., 156, and has been discussed in many cases in that Commonwealth, and in our own State since that time. Manning v. Wheatland, 10 Mass., 505; Pickard v. Richardson, 17 Mass., 122; Deering v. Sawtelle, 4 Maine, 191; Chandler v. Morton, 5 Maine, 374; Clapp v. Hanson, 15 Maine, 345; Lincoln v. Fitch, 42 Maine, 456; Baxter v. Ellis, 57 Maine, 178; and perhaps some others. In all these cases, however, it will be found that the rule has not been carried beyond that of Churchill v. Suter, and in all the party was excluded, because the consideration of the note was illegal or the note void in its inception, and the witness offered was not only a
In Thayer v. Crossman, 1 Metc., 416, after a review of the authorities, Shaw, C. J., remarks, on page 421-2 : “Erom this view of the authorities, and assuming that the rule, as laid down in Churchill v. Suter, is the true rule of law in this Commonwealth, we think it will appear to be confined to negotiable bills and notes, actually indorsed and put into circulation by the witness, with a view to give them currency as negotiable securities.”
In Buck v. Appleton, 14 Maine, 289, Weston, C. J., speaking of the case of Churchill v. Suter, says: “It is well known, that the principle, upon which that case was based, has been repudiated in the country from which it was derived, and that neither this court, nor the courts in Massachusetts, have been disposed to extend it.”
Does, then, the testimony of the defendant come within the rule as established by the cases referred to ? We think it does not. He was not certainly, a willing -party to any wrong in the consideration, or want of consideration, of the note. His testimony now is not inconsistent with any purpose he then had in view, or any intentional act then performed. He did not, according to the testimony, sign the note for the purpose of giving it currency as a negotiable security; he did not sign it as a note, but only as a different paper, and for an entirely different purpose. The question is not, whether under his statement he is liable, but whether the facts are such that he cannot legally testify to them. As they do not proclaim any turpitude on his part, as they tend to show, not that the paper, as originally signed, was void for the purpose for which it was signed, but that it was not then, and was not intended for a note, we see no reason, grounded upon public policy or otherwise, why the testimony should be excluded. The testimony would certainly be admissible from other witnesses, and under our present statutes, and the rule established by the eases already referred to, and which we do not intend to subvert, is equally admissible from the party, unless by some previous act,
Another defence set up in this case is that of forgery. Upon this the instruction to the jury, to which exception is taken, was : “If the testimony of the defendant and his sister in respect to it, is true, then this instrument was a forgery, and this action cannot be maintained.”
If this instrument was a forgery it was so by virtue of an alteration and not of its original execution. It is true the defendant testifies, substantially, that he signed it under a misapprehension, into which he was led by the acts and statements of the payee. He further testifies that, “there was some printing on that paper; it was a blank form. * * * There was no writing on that paper before I wrote my name.” The only conclusion to be drawn from this testimony is that the paper was an unfinished one, to which something more was to be added to complete it. The paper at that time, then, had no validity for any purpose whatever. The case of State v. Shurtliff, 18 Maine, 368, differs materially from this. That was a criminal proceeding, the pui-pose of which was to punish the wrong-doer. This is a civil action upon a negotiable instrument, and involves the rights of an innocent holder. If a forgery, it became so only by the alterations made subsequently to its delivery. These changes or additions were certainly sufficiently material to make it such. But whether so or not, might depend upon, the relations existing between the parties. If the paper was delivered as a completed instrument, without authority express or implied to fill any blanks or make any changes, the subsequent additions would clearly be a forgery. If, on the other hand, it was delivered as an incompléte instrument with blanks to be filled, then, even if the blanks were fraudulently filled, and the instrument made different from what the signer authorized or intended, according to the case of Putnam v. Sullivan, 4 Mass., 45, it would not be forgery, but a breach of trust.
It becomes, then, material to know the object or purpose for which this instrument was delivered to the payee; not what the defend
But assuming that the payee of this note has been guilty of forgery in filling up the blanks, as he is claimed to have done, it does not follow that the defendant is free from all responsibility in the matter. By his statement, he voluntarily signed the blank out of which this note Avas made, supposing, it is true, that it was for a different purpose. The blank passed from his hands by his con
In Somes v. Brewer, 2 Pick., 184, a case which has some significance in its bearing upon this, Parker, C. J., on page 202, states the rule with great clearness and force. He says: “It is a general and just rule, that when a loss has happened which must fall on one of two innocent persons, it shall be borne by him who is the occasion of the loss, even without any positive fault committed by him, but more especially if there has been any carelessness on his part which caused or contributed to the misfortune.”
In Gibbs v. Linabury, 22 Mich., 479, which was an action upon a note delivered by the signer in ignorance of its true character and by means of fraud, it was held, that the note was void even in the hands of a bona fide purchaser. But it was found, and made an element in the decision, that the maker signed it “under circumstances devoid of any negligence on his part.”
Exceptions sustained.