69 Neb. 242 | Neb. | 1903
This is an action upon a promissory note. The defense is a denial that the purported signature of the defendant, who is admittedly hound, if .at all, only as surety, is genuine. On the trial a great many witnesses on both sides testified as experts concerning the genuineness of the disputed signature, a large numerical majority of them favoring the contention of the defendant. At the instance of the plaintiff the court gave to the jury the following instruction which Avas excepted to.
“You are instructed that the evidence as to the genuineness of handAvriting is generally regarded as of a weak and unsatisfactory character, not only from the exactness with Avhich handwriting may be imitated, but also on account of the dissimilarity to be found in different specimens of the handAvriting of the same person, executed at different times and under different circumstances. The evidence as to handAvriting should be considered by you in connection. Avith all the other facts and circumstances surrounding the case, which are in evidence before you. You should give the evidence of each witness such credit as you deem it entitled to, taking into consideration the sources of his knowledge and the fact as to how well acquainted he is with the handAvriting of the defendant and the frequency of the times at which he has seen the defendant write, and the different circumstances under Avhich he has observed his Avriting or his signature.”
We think the giving of this instruction was error prejudicial to the defendant, who Avas defeated below and who prosecutes this proceeding. The instruction does not differ essentially from one that suffered unanimous disapproval at the hands of this court in Hayden v. Frederickson, 59 Neb. 141.
The defendant in error seeks a discrimination between the two cases in the respect, that in the case cited the expert testimony referred to appears to have all been introduced in behalf of one party, while in the present in
There are other errors assigned which, in our opinion, are sufficient to require a reversal of the judgment, but they are of such a nature and happened under “such circumstances that they are not likely to recur upon a new trial, and we deem it not necessary to discuss them here.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and that a new trial be granted.
Reversed.