Ellis v. Hof, 123 Wis. 201

Ellis v. Hof

123 Wis. 201 | Wis. | 1904

Cassokat, O. J.

The statute declares:

“Every written instrument purporting to have been signed -or executed by any person shall be proof that it was so signed or executed until the person by whom it purports to have bmn ■so signed or executed shall specifically deny the signature or 'execution of the same by his oath or affidavit or by his pleading duly verified.” Sec. 4192, Stats. 1898.

This court has repeatedly held that this section only “dispenses with proof of the signature to a written instrument until the person by whom it purports to have been signed -shall specifically deny the signature of the same by his oath or affidavit or by his pleading duly verified. Wallis v. White, 58 Wis. 26, 15 N. W. 767; Nielson v. Schuckman, 53 Wis. 638, 11 N. W. 44. Here the answer of the defendant J. J. Hof, duly verified, expressly denies that he <Sver executed the note or the mortgage, and avers that the signatures of "“V. J. Hof ’ to said note and mortgage were forgeries, and that he never signed the said note or mortgage, or either of them, and never saw either of them until they were exhibited to him by the plaintiff’s attorneys four days after the commencement of this action. “In such a case,” as said by Chief Justice Cole, speaking for this courtj “the statute imposes upon the party claiming the note to be valid the burden of -proving the signature, and that the note is a binding obligation as against the party resisting the payment thereof.” Thomas Ludlow & Rodgers v. Berry, 62 Wis. 78, 80, 22 N. W. 140; Finlay v. Prescott, 104 Wis. 614, 618, 80 N. W. 930. Nevertheless, counsel for the plaintiff contend that ffhe burden was on the defendant Ilof to prove that his sig*205natures were forgeries by clear, convincing, and satisfactory evidence, and beyond all reasonable controversy. In supportof suck contention counsel cite cases in this court where the* signatures were genuine, and where no attempt was made, or,, if made, there was a failure to bring the case within the provisions of the statute quoted. The question is important kero-only as meeting the contention of counsel, since the defendant Hof assumed the burden of proving that his signature to-the note and mortgage were forgeries; and, as indicated in-, the statements of facts, the trial court found in his favor;-, and, as we read the record, such findings are sustained by clear, convincing, and satisfactory evidence, and beyond all: controversy. The general nature of the evidence may be-briefly stated. The note and mortgage'purport to have been-made in Milwaukee November 19, 1891. The notary public was the confidential clerk of ITenry Herman, and had been* for years. He left Milwaukee soon after Herman absconded,, and removed to Oklahoma. He testified that he thought the-signature was Hof’s, but he had no recollection of the execution of the mortgage in suit, except that his signature appears. on it. He admits that he had certified to acknowledgements without the parties being before him, and that it was a common thing in Herman’s office in 1900; but that he never did’ so in 1891. The other subscribing witness testified that he had no recollection of witnessing the instrument, and could not say that Hof signed it in his presence; that, if Herman-, showed him the signature and asked him to sign as a witness, he would have done so, without Hof being present, if he-believed it to be Ilofs signature, as he did. At the time of executing the note and mortgage, Hof resided at Sobieske,. in Oconto county, and had for the two years immediately preceding, and has ever since. For some years prior to 1895 he-had resided in Milwaukee, and had business relations with Henry-Herman. The signatures were denied by Ilof in thorn ost positive manner. His letter book and his memorandums *206book furnished written evidence as to his whereabouts during almost every day in the month of November, 1897. They show that he was at his home in Sobieske on the day the note and mortgage purport to have been executed in Milwaukee; .that on that day he wrote a letter from Sobieske to Milwaukee; that he was in Sobieske during the whole of the week 'before and for more than a week afterwards. Hof took his meals at a hotél in Sobieske on the 19th, 20th, 21st, and 22d ,-of November, 1897, and the keeper of the hotel and his wife ■testified that Hof was there on each of those days; and they are corroborated by entries in their account book of charges against him for such board. Other witnesses testified to business transactions with him in Sobieske on November 19 and 20, 1897. Six experts testified that the signatures “J. 3. Tlof” on the note and mortgage, in their opinion, were not made by Hof. Some of them had long been acquainted with his handwriting, and one, especially skilled in such matters, after comparing such signatures with those admitted to be ■genuine and from enlarged photographs thereof, in evidence, states thirteen several differences between the genuine and ■the forged. Such differences are apparent upon close inspection. We must hold that the findings are amply supported by the evidence.

2. Counsel further contend that, if Hof did not execute the note and mortgage, he adopted, ratified, and confirmed their ■execution. It is enough to say that we find no evidence in the record that would justify a finding that Hof was estopped "by conduct from denying the signatures. On the contrary, all his conduct is the other way.

By the Gourt. — The judgment of the circuit court is •affirmed.