44 Ind. 363 | Ind. | 1873
This was an action by the appellant against the appellee on a promissory note, made by one Grissom, with the appellee as his surety, to the appellant. Grissom having died, the action was against Hobbs alone. ’ The note is for seven hundred and fifty-eight dollars and ninety cents, dated January 4th, 1870, and payable in thirteen months after date.
The defendant pleaded that he never signed the note or authorized any other person to sign it for him. The issue was, by agreement, tried by the court, and there was a finding for the defendant. The plaintiff moved the court for a new trial, on the ground, among others, that the finding was not sustained by sufficient evidence. This motion was overruled, the plaintiff excepted and put the evidence in the record by a bill of exceptions.
The error assigned is the overruling of the motion for a new trial.
The evidence on the trial was substantially as - follows: Craig, the plaintiff testified that he was the owner of the note; that he filled it up as it is, except the signatures, read it to Grissom, and handed it to him to read and get surety on it. In about an hour or an hour and a half, Grissom returned the note with signatures, as it now appears.
Hobbs testified: lam a brother-in-law of Grissom; had known him for ten or eleven years before the note was given; Grissom came to me one day in January, 1870, and told me he wanted me to sign a note to Craig. He never requested me to sign more than the one note to Craig; I never signed the note, but I authorized Grissom to put my name to a note for three hundred and sixty dollars; I did not request Grissom to read the note to me; I placed confidence in Grissom; I saw him have a paper in his hand; Grissom signed my name to the note at the bureau in my
Whitehead testified that he was present when the note was signed; that Grissom told Hobbs he wanted to see him. They went out on the porch; they came back; Grissom to'.d him he wanted him to sign that note. Hobbs said you know that I can not write or read writing. Grissom turned around to Mrs. Hobbs; said it was wheat that he had bought from Craig for three hundred and sixty dollars, and asked her to sign Hobbs’ name as security for a note of three hundred and sixty dollars. Mrs. Hobbs said she had never signed Mr. Hobbs’ name to a security note and never would. Nothing was said about his signing a note for seven hundred and fifty dollars. The note talked of was for three hundred and sixty dollars. Grissom took the note out of his pocket,, when they came back into the house. Mr. Grissom did not say anythingaboutthenote. After Grissom signed the note,heput it in his vest pocket and went away. No one asked Grissom to read the note, nor did he try to keep any one from reading it.
Dietrich testified, to the same as Whitehead; neither of them could read or write.
Craig knew of no deception or unfair practice of Grissom to induce Hobbs to sign the note.
The question is, whether or not Hobbs is bound by the note signed under the circumstances. We must regard the case precisely as if Hobbs had signed the note himself under the same circumstances. He authorized Grissom to put his name to it, and the act of Grissom in signing it was the act of Hobbs, so far as the act of affixing the signature is concerned. Craig had nothing to do with procuring the signature of Hobbs to the note. No fraud or deception can be charged upon him. When he had filled up the note, read; and'handed it to Grissom, he had no more to do with it until it was returned to him with the signatures of the makers to it. Assuming for the present that the statement
But in Jenners v. Howard, 6 Blackf. 240, non est factum having been pleaded, the defence was, that the maker of the bond was induced by his co-obligor to sign the bond by undue influence, when he was in a state of intoxication brought about by the other maker of the bond, etc. The Court said: “ It was not pretended that the plaintiff had any Influence whatever over Howard, nor that there was any collusion- between the plaintiff and Carroll to circumvent him.
The judgment is reversed, with costs, and the cause remanded, with instructions to grant a new trial.