Cook v. Strother

100 Mo. App. 622 | Mo. Ct. App. | 1903

ELLISON, J.

This is an action on a promissory note alleged to have been executed by Enoch Cook in his lifetime. The defendant administrator prevailed in the trial court. The defense made was that the deceased never executed the note and that it had been altered after the signature while in plaintiff’s possession.

The two chief errors noted in plaintiff’s brief relate to the comparison of the admitted signature of a witness, James M. Cook, with the signature on the note. Under the statute (sec. 4679, R. S. 1899) it is not only proper to show in evidence, for comparison, some admitted signature of the party alleged to have executed the note, but you may also show for comparison, some admitted signature of the party (if any) who is accused. of the forgery. Bank v. Hoffman, 74 Mo. App. 203. This, of conrse, does not authorize the introduction of signatures of a party who is not charged to be in any way connected with the forgery. The witness James M. Cook is not shown by the record to be connected with the note in such way as to justify the introduction of the signature for the purpose stated. But the evidence was received without objection and therefore is not a ground of error. There was an objection and exception, but the objection was specially put as to the “form” of the question asked, and not to the competency of the evidence. Such objection only goes to the form of the question and does not entitle the objector to afterwards, on appeal, complain of the substance. An objection of that kind justifies the trial court in assuming that the competency of the evidence, in matter of substance, was not disputed.

The other objection relates to*defendant’s instruction number two. The matter of complaint is that that instruction submitted the question of the alteration of the note while in plaintiff’s possession and directed that if it was so altered, the finding would be for the defendant; without a qualification that such alteration must have been made by plaintiff or with his consent. Conceding all of plaintiff’s criticism, he can not be heard to complain, for the reason that it is an error invited or joined in by him. In his first instruction it is declared that the note was prima facie evidence of an indebtedness, provided it was believed that the note was executed by the deceased, and the finding should be for plaintiff, “unless the defendant has established by a preponderance of the evidence that since it was made and delivered the note has been changed.” It is thus seen that plaintiff invited the omission complained of in defendant’s instruction by first getting one in his.own favor in which he makes the same omission. We have considered plaintiff’s argument on this branch of the case, but find ourselyes unable to agree with him. It is not possible, within the bounds of reason, giving to language its meaning as commonly understood, to find any practical difference, on the point in controversy, between the two instructions;

The judgment should be affirmed.

All concur.