47 Ga. App. 77 | Ga. Ct. App. | 1933
On the trial of an issue made by a plea of non est factum, “other writings, proved or acknowledged to be genuine, may be admitted in evidence for the purpose of comparison by the jury. Such other new papers, when intended to be introduced, shall be submitted to the opposite party before he announces himself ready for trial.” Civil Code (1910), § 5836. Thus, on the trial of such an issue, under the mandate of the statute such papers, before they are admissible for comparison by the jury, must, even though they be “acknowledged to be genuine,” be submitted to the opposite party before he announces ready. This is true because, under the provisions of the statute, the opposite party is entitled to know if this character of proof will be resorted to; and if so, he is entitled to know in advance just what signatures will be offered for such purpose. Accordingly, in the instant case, irrespective of whether or not it might have been reversible error to permit the defendant to sign her name in the presence of the jury over the protest of the plaintiff, in order that the jury might compare such signature with that on the note in question, on the theory that it was a mere self-serving act, or on the only ground actually assigned, to wit, that the defendant had not previously announced her purpose to use such signature, when such signature was then nonexistent, the additional exception to the admission of the defendant’s signature on her plea of non est factum must be sustained, since, under the rule in Marietta Fertilizer Co. v. Gary, 22 Ga. App. 604 (6) (96 S. E. 711), the plaintiff was entitled to know if such evidence
Error is assigned on the failure to charge the legal principle that the defendant would be liable on the promissory note sued on, even though she did not execute it or authorize any one to do so for her, if she negotiated it for a valuable consideration. See Bank of Madison v. Cochran, 26 Ga. App. 125 (105 S. E. 626). This assignment is without merit, since there was no proof of-such negotiation.
Error is assigned also on the failure to charge the law of ratification. The negotiable-instruments law (Ga. L. 1924, p. 132, sec. 23), provides that “When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right . . to enforce payment thereof against any party thereto can be acquired through or under such signature unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.” The word “precluded” has been held to be synonymous with “ estopped,” and not to include ratification or adoption of the instrument or signature thereon, unless these involve also the elements of estoppel. Brannan’s Neg. Instr. Law (4th ed.), 182, 183. To create such an estoppel, there must be actual injury or damage. Whether, in the absence of an estoppel, a forgery may be ratified so as to create a liability on the instrument itself, is a question on which there is much conflict of authority. A minority of courts hold that one whose signature may be forged to a. promissory note, and who, with knowledge of all the circumstances and intending to be bound, acknowledges the signature or agrees to pay the
Judgment reversed.