63 Mo. 28 | Mo. | 1876
delivered the opinion of the court.
Action on a note purporting to be executed to plaintiff by Robert L. Gillilan, Nathan Gillilan and Mary J. Clendennen. The suit was instituted against Robert L. Gillilan and the administrators of Mary J. Clendennen, but was dismissed as to them, and proceeded with against Nathan Gillilan alone. Nathan Gillilan denied the note under oath. The case was tried before the court without a jury. The evidence, as set out in the bill of exceptions, was as follows :
John.Cravens, the plaintiff, testified: “I wrote the body of the note sued on, myself. Robert L. Gillilan signed all the names to it. Nathan Gillilan was not present. About a year ago I met the defendant here in Gallatin, spoke to him about the note in suit, and asked him if they had not better settle it. Told him whose names were on the note. He asked to see the note; told him it was in bank. We started toward bank to see it, when defendant said, ‘ I will go and see Robert L. Gillilan about the note.’ He left me, and when he returned in a short time, he said,
Cross-examination. When Robert Gillilan obtained the money for which the note in suit was given he said it was for Mrs. Mary J. Olendennen. Mrs. Olendennen was dead when I had the conversation with defendant, first referred to in my testimony, and Robert L. Gillilan was one of the executors of her will. I spoke to defendant to see if they wished to take up the note, and have it probated against Mrs. Clendennen’s estate. When defendant returned, after seeing Robert L. Grillilan, he said, “ Its Bob L.’s note; there’s no necessity for having it probated against Mrs. Clendennen’s estate; it is all right, if you want the money we will pay it.”
Maro Thomas testified: “About the last June term of the Circuit Court plaintiff and I were in the drug store together, when defendant came to the door and spoke to plaintiff saying, “ Dr. Cravens, that note is all right; it was Robert L. Gillilan’s . debt.”
Plaintiff being re-called stated that the conversation mentioned by Maro Thomas was the same conversation referred to in his testimony. . Plaintiff hero offered the note in evidence and the defendant objected to its introduction for the reasons ; that the execution of the note was not sufficiently established ; that the conversations of defendant' in evidence did not amount to a ratification of the note; that the note was a forgery, as to defendant and Mrs. Olendennen ; that it was not shown that defendant, at the
These objections were overruled and the note admitted in evidence, and the defendant duly excepted.
The defendant Nathan Gillilan testified as follows : “ At last June Term of the Circuit Court I met plaintiff. He said to me, ‘^Hadn’t you better fix up that note I have against Mrs. Mary J_ Clendennen, so as to have it allowed against her estate V I told him I knew nothing about it; that Robert L. Gillilan was executor of Mrs. Clendennen’s will, and that I would see him, Robert L., about; it. I went at once and saw Robert L. He told me the note was all right; that it was his, Robert L.’s debt; and that if Dr. Cravens wanted the money he would pay it. I then went to the drug store and told plaintiff that the note was all rightthat it was Robert L.’s debt. I did not then know that my name was on the note. I never authorized Robert L. Gillilan to sign my name to the note in suit. The money was not gotten for my use. I never knew that my name was on the note in suit until plaintiff showed me the note, here in town, after the arrest of Robert L. Gillilan. Had heard it talked of here in town after his arrest, and after we got into town, the day I met plaintiff going to my house, I asked him to show me the note, which he did. When I saw the note in suit I told plaintiff I never signed it; that my name was forged, and that I would not pay the note. In the first conversation I had with plaintiff in June last, he did not tell me my name was on the note; he never offered to show me the note at that time, and I never knew my name was to the note, and never saw it until he showed it to me after Robert L. Gillilan’s arrest.”
This was all the evidence offered. The defendant asked the following declarations of law, all which were refused by the court.
The plaintiff asked no declarations of law. The court found for plaintiff. The defendant filed a motion for a new trial and in arrest of judgment, which was overruled. He now brings the case here by appeal.
The principles enunciated in the 1st and 2nd declarations of law asked by defendant have been discussed at length in the case of The First National Bank of Trenton vs. Samuel Gay, et al., decided at the present term. In the refusal of those declarations there was no error.
We pass now to the consideration of the defendant’s third declaration. It is among the fundamentals of the law that the onus probandi lies on him who asserts the affirmative of the issue. When, under our practice, the defendant denies the execution of the note in suit, it devolves on the plaintiff to establish that which he has asserted in his petition, first, by showing that the defendant did in fact execute the instrument as alleged, or second, that subsequent to the execution of the instrument he adopted his name, placed there by some unauthorized hand, as his own signature ; and in either event, the burden necessarily rests on the shoulders
It follows, that the judgment must be reversed and the cause remanded ;