34 Mich. 113 | Mich. | 1876
Plaintiffs in error, claiming to be Iona fide holders of a negotiable promissory note executed by the defendant, brought an action of assumpsit to recover the amount, thereof. The defendant pleaded the general issue, and filed therewith an affidavit, setting forth that the signature to the note declared upon he believed to be his, but that the same was procured under circumstances, fully set forth, which would render him not liable thereon.
■Upon the trial, after plaintiffs had introduced evidence tending to show that they were Iona fide holders, which was not disputed, the defendant offered evidence tending to show that ho never signed the note. This was objected to as irrelevant and immaterial, and also because the defendant, in the affidavit attached to his plea, had not denied its execution. This latter objection was made and overruled several times during the progress of the trial, and indeed forms the.-basis for most of the plaintiffs’ exceptions.
As was said in McCormick v. Bay City, 23 Mich., 457, “We do not think an affidavit of this kind should be subjected to any very technical rules of construction. If it appears- that a defendant means to contest the execution or delivery in' good faith, any legal questions concerning the sufficiency of the defense should be reserved for the trial,
The court permitted defendant’s counsel, upon cross-examination of plaintiffs’ witness Simons, to inquire of him respecting what took place the next day betweon Kimball, the. payee of the note, and other parties concerning similar, transactions. Simons had testified that he was present at the time the note in question was executed and delivered by defendant to Kimball, and that he was there as the agent or servant of Kimball. The defense claimed that the signature to the note, if signed at all by the defendant, was obtained under false and fraudulent circumstances, and that Simons was a party to the fraudulent transaction. As tending to show this, and for the purpose of affecting his credibility as a witness, they made these inquiries. In cases of this kind a very wide latitude should be allowed ¡upon cross-examination. Much must be left to the discretion of the trial judge. We think the inquiry was pertinent and proper to go before the jury to be considered by them in weighing Simon’s testimony. — Bissell v. Starr, 32 Mich., 297.
The most important questions yet remain' "to be considered. The execution óf the note having been denied, plain
There was no dispute but that on the day the note purported to have been executed, F. M. Kimball, accompanied by Simons, visited defendant at his residence; that Kimball sought to and did induce defendant to agree to act as an agent for the sale of a sulky wheel cultivator, and that an agreement in duplicate to that effect was then signed by both Kimball and defendant, each retaining a copy.
. Defendant testified, after speaking of the inducements held out to him to become an agent: “I finally said, I will take the agency, if it wouldn’t be any thing out of my pocket at all, and do what I could; if I could sell any it was good, and if I couldn’t it Avas good, and so at last I agreed to go agent; and I asked him how long the agency should last, and he said from one year to ten, — I could throw it up any time I had a mind to. So at last I consented, and he went to filling out them two papers. He took them out of a satchel, I believe. The paper now shown me is one of them that I signed. After he took the papers out he gave nie one. I am a poor scholar. I can read the writing. I can read this here. And he told me I should folloAV him, and he commenced reading, and ho read so fast that I couldn’t keep up. I was standing there; Simons was in the buggy. * * * I AArould not like to tell you that he read the instrument through; I couldn’t tell you, he read so fast. I am a poor scholar. I can’t.
Simons testified: “I know defendant; have seen note in suit before; first saw it on the day it was given. I saw it signed and executed. Mr. Walter signed it. I was sitting in a buggy in front of his house at the time. It was in a small note book when he signed it. * * The note was dated on 'the day it was signed. I saw Moses Walter sign three papers, — two agency papers, — and one he kept and one Mr. Kimball kept. This note was executed there in a book. The agency papers were signed first. * * * He (Walter) spoke of several neighbors who thought of getting cultivators, and he thought he could sell them some, and he finally concluded that he would take the agency, and Mr. Kimball went on and drew up the agency papers, and also the note in the note book. Mr. Walter signed the agency papers, and also the note in the note book. Mr. Walter signed the agency papers, and Mr. Kimball handed him the note book, and Mr. Walter read it, or a portion of it. He continued to read it, but some words he could not make out very distinctly, arid Mr. Kimball assisted him in reading
It will thus be seen that the tendency of this evidence leads in but two directions. If Simons was correct, there could be no question but the note was genuine and that defendant was liable; while if defendant’s testimony was true, the note was simply and purely a' forgery. There was no middle ground. If, as defendant testified, he signed but two papers, viz.: duplicates of the instrument appointing him agent, and that he saw no note and signed no note, it would be difficult to get up any sound theory upon which the plaintiffs would be entitled to recover. As the testimony stood no dispute could, and none did arise, as to what the charge should have been, assuming Simons’ testimony to be true. The only ground upon which plaintiffs’ counsel claimed the right to recover, in case the jury found defendant’s testimony to be true was, that he admitted signing a paper, viz.: the duplicate agency agreement, and
which in the affidavit attached to his plea was called a bond, by which he obligated and intended to bind himself to pay two hundred 'dollars, and which he thus put in circulation voluntarily; and the fact that it turned out to be a different obligation from the one he supposed it to be, was no defense as against plaintiffs. Such being the testimony and theory of counsel, the court upon this part of the case charged the jury, under plaintiffs’ sixth request as modified: “If the defendant was guilty of negligence in signing the note, if you find he did sign it, and had ample means or good reason, to know that he was signing a note at the time he subscribed his name to the note in question, the plaintiffs are entitled to recover.” And at defendant’s request the court charged:
1. “The defendant Walter is-sued in this ease upon a* promissory note, which, it is claimed by .the plaintiffs,*119 he signed, and delivered aa a hole. If it appears from-the evidence that Walter did not know he was signing the-note when it is claimed that his signature thereto was obtained, he cannot be held liable ufcm it, provided he was--guilty of no negligence in signing , ,, ^ N
2. “If Walter never barfaihM te sigA the note, or to give a note, and did not süppós'é ''M Relieve he signed such an instrument, but "ivás ib ’fáót bhly to sign the other papers he had heard fé'á'd> !áhA fe^Abved he had only signed them, the' note is voiA hi the Hands of the present holders, and the plaintiffs canhdt íéCover upon it.”
From this it will be seen that the court in the sixth request of counsel for plaintiffs, and the first for defendant, as given, clearly, and as favorably as plaintiffs were entitled to, submitted the question of defendant’s negligence in signing the note, if he did sign it, to the jury, and it was not necessary to repeat the instructions so given. The jury having been properly instructed as to the, effect his negligence in-signing the papers would have, if they found that one of the papers so signed turned out to be this note, it was not necessary to incorporate that part of the charge into every other portion, unless it was apparent that otherwise the jury might have been misled by the omission. The charge was given and understood by the jury as a whole, although contained in separate paragraphs or requests and originating with different counsel, and we must examine it in the same connected way in which it was given to the jury, and upon the assumption that they did not overlook, but gave due and equal weight to each and every part.
But this second request of defendant’s, as given, I think, standing alone, would not be open to objection. If the defendant never agreed to sign or give a note, and did not suppose or believe he was signing one, but was in fact only to sign, and believed he only was signing, the paper he had heard read, appointing him agent' to sell the cultivator, it is somewhat difficult to see how he could be held liable upon this - note; and it is'equally difficult to sée how1 a man signing
Nor, in my opinion, does the fact that the instrument appointing him agent contained the recital that it was “for and in consideration of the profits of ten machines, being the sum of two hundred dollars, to me in hand paid by note bearing even date, the receipt whereof,” etc., make any difference. The words “by note bearing even date” were interlined, and it was a disputed question on the trial whether those words were not interlined after the paper had been read over to defendant, and without his knowledge. But however this may have been, the fact still remained that defendant at no time intended to or supposed he was signing a note, or that the obligation to pay two hundred dollars, as contained in the instrument ho supposed he was signing, could become in any way a negotiable instrument. I concede there may be cases where a party signing and putting in circulation an instrument should be bound by the terms thereof, even though it turned out different from what he supposed it to be; but such cases cannot be carried so far as to hold that a party signing in good faith what ho has heard read, and what purports to bo a power of attorney, contract, deed, mortgage, or any similar instrument, shall afterwards be held liable in case a negotiable note of that date, which he did not know or suppose he was signing,
It may, however, be a question of considerable doubt whether there was any evidence in the case tending to show negligence on the part of the defendant, and any question of negligence, therefore, to submit to the jury. There certainly is no such tendency in the testimony of Simons. Ho testified that the duplicate agreement was read, compared and signed; that a book of blank notes was produced, a note filled up therein, read over by defendant with Kimball’s assistance and then signed; that three papers wore signed, the agreement in duplicate and the note. His evidence was direct and positive, that defendant knowingly and willingly signed the note in suit, and it excluded all question of negligence in any degree. When we turn to defendant’s testimony, we find ho is equally clear that he signed only two papers, viz.: the agency agreement in duplicate; that nothing was said about a note; he saw no note; that the note in suit was not presented to him and he never signed it, and there was nothing in his testimony on the stand, so far as appears from the record, tending to show that the signature to the note was genuine, whether obtained through carelessness or otherwise. The question presented from the testimony of these two witnesses upon the trial was one simply of a genuine note knowingly and willingly given, or a forgery. It is true the bill of exceptions does not contain all the evidence, but the burden is upon plaintiffs in error to show error affirmatively, and when they complain that the question of negligence was not properly submitted to the jury, they must show that there was evidence introduced on the trial to warrant such a charge.
We discover no error in tho giving of defendant’s third request. There was evidence tending to show that' defendant could read but very little; that the paper constituting him agent was read over to him by Kimball, and that it was not read correctly, part having been omitted. It would seem to be a self-evident proposition that where a party to an instrument undertakes to read it over in the presence and hearing of the other party thereto, in order that he may understand its contents before signing it, the party reading is both legally and morally bound to read it correctly, and that the other interested party has a right to rely upon its being so read and need riot examine it himself. These papers were compared in the usual and customary manner, and ordinarily no negligence can be attributed to one who signs papers, after having so heard them compared, without any farther or other examination.
’ There being no error in the record, the judgment must be affirmed, with costs.