53 Mo. App. 553 | Mo. Ct. App. | 1893
— This action is founded on a promissory note for $630, executed by defendants as sureties for one, E. P. Whalen, to R. H. Washburn and by him sold and indorsed to plaintiff. The defense was a denial under oath of the execution of the note. The judgment was for plaintiff.
We will notice the several grounds relied upon for reversal in the order in which they are set forth in defendants’ brief. The first is that the court committed error in permitting the note to be read in evidence for the reason that the weight.of the evidence showed that the defendants had not signed it. But there was evidence, which, if believed, showed that they did sign it. It was therefore entirely proper for the court to permit the jury to say which was the fact.
The next point is embraced in the first, viz.: That there was no substantial evidence entitling plaintiff to judgment. There was evidence for the consideration of the jury. It ought not, therefore, to require a citation of authorities to show that when there is evidence in a cause of substantial character we will not undertake to balance it to find which way it preponderates, after the jury has determined it in the verdict and the trial court considered it oh a motion for a new trial.
It is next objected that the trial court ruled out
It is next urged that the court erred in not permitting defendants to ask of this witness whether a man could lay the note in suit “over a name and trace it with a point of a pencil accurately.” In our opinion if this was a matter for expert testimony it was not relevant to this case. That a signature could be traced through thin paper may be conceded, but certainly this well-known fact would have a very remote tendency to prove that these signatures were traced. The witness was not asked if the signatures on the note bore evidence of tracing. Suppose the witness had been permitted to answer and had said that signatures could
The foregoing remarks will also apply to the fifth objection to the action of the court, wherein defendants were refused permission to give to the jury certain blank notes printed on paper like the paper upon which the note in suit was printed, so that the jury might-determine “whether by using such notes names could be traced by placing them over the signature.” This would possibly have had the effect of showing that such a thing could be done, but had no bearing upon the issue as to whether it was done.
Complaint is next made of the action of the court in refusing defendants’ offer to permit the jury to take their answer in the cause to the jury-room. This offer must have been for the purpose of having the jury to see the signature of the defendants to their affidavit denying the execution of the note. It was properly disallowed. It was no more than if defendants had offered to write their names at the trial and submit them to the jury. The signatures here offered to be given to the jury were the signatures which offered the issue of forgery of the signatures to the note. If such practice could be permitted it would put it in the power of parties to make up testimony to suit themselves. See Springer v. Hall, 83 Mo. 695.
Coming to the instructions given for plaintiff We find complaint made as to the second in which the court directed the amount the jury should find for
It is quite probable that the trial court, in point of fact, did not pass upon this question. The objection to the instruction was probably on the technical ground that the jury should be allowed to make their own calculation of amount. The entire trial below seems to have been confined to the sole question of whether defendants executed the note. But, as we understand the practice as approved by the supreme court, a general objection to an instruction will cover all points of objection which can afterwards be made.
Instruction number 1, refused for defendants, was properly refused. It was singling out a portion of the case, and amounted to a comment on the evidence. All in it that was proper was well presented to the jury in other instructions. Instructions for plaintiff with the exception of the one above noted were unexceptionable. We see no substantial objection to number 4. The testimony of Washburn concerning another note of $500, conceding it to have been improper, could have had no effect upon the jury in passing on the issue in the cause.
We have examined the alleged grounds for new. trial as presented in the affidavits filed by defendants as well as those in opposition by plaintiff, and find no error in the court’s ruling thereon. We do not care to extend this opinion by going into the matter further than to say that after considering them we have arrived at the conclusion that the trial court made the proper disposition of the motion in this respect.
If the plaintiff will, within fifteen days, enter a remittitur for all over the amount of the principal debt and interest owing by Whalen to plaintiff, for which the note in suit was given as collateral, the judgment will be affirmed. Otherwise it will be reversed and remanded.