Gluckman v. Darling

Mar 17, 1914
Versions:89 A. 1016
85 N.J.L. 457
56 Vroom 457
1914 N.J. Sup. Ct. LEXIS 82

The opinion of the court was delivered by

Trenchard, J.

This is tire defendant’s appeal from a judgment in favor of the plaintiff entered upon thе verdict of a jury.

The suit was on a promissory note, the plaintiff being a bona fide holder for value, and the defendant a prior endorser. The other defendant, Charles Flynn (who does not appeal), was the maker.

The defendant at the trial denied his signature as endorser, insisting that it was a forgery.

At the close of the plaintiff’s case the defendant moved for nonsuit upon the ground that there was no proof of his signature, and that there was no evidence from which ‍​‌​​​​‌‌‌‌​​‌‌​​‌‌​‌‌‌​‌‌​​‌‌‌‌​​‌​​​‌​​​‌‌‌​​‌‌‍the jury could find that he was estоpped from interposing such defence. At the close of the whole casе he moved for a direction of a verdict upon the same ground.

We think both motions were properly overruled.

It is argued with much forсe that the evidence of admissions 'by the defendant opened the wajr to the jury tо find that the defendant had in fact endorsed the note. But, however that may be, the question of estoppel was clearly for the jury.

The evidence upon the part of the plaintiff tended to show that Balene & Max (partners) were about to sell to. Chаrles Flynn some real estate and were to take in part payment *459therefor nоtes made by Flynn and endorsed ‍​‌​​​​‌‌‌‌​​‌‌​​‌‌​‌‌‌​‌‌​​‌‌‌‌​​‌​​​‌​​​‌‌‌​​‌‌‍by the defendant; that B a lene & Max requested the defendant to be present at the transfer because they had heard that there might be some question about the notes. The defendant attended, examined the notes, one оf which was the one upon which this suit is based, and then said “everything is all right.” The notes ^ were then аccepted on account of the purchase price of the property, and the one in suit subsequently passed by endorsement, for a valuable considеration, to the plaintiff.

Section 23 of the Negotiable Instruments law (Pamph. L. 1992. p. 588; Comp. Stat., p. 3738) provides as follows:

“Where a signature is forged or made without authority of the pеrson whose signature it purports to be, it is wholly inoperative, and no right to retain the instrumеnt, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can he acquired through or under such signature, unless the pаrty against whom it is sought to enforce such right is precluded from setting up the forgery or want оf authority.3'

Under the common law the same rule prevails. The common law indicates what is meant in the statute by the provision “unless ‍​‌​​​​‌‌‌‌​​‌‌​​‌‌​‌‌‌​‌‌​​‌‌‌‌​​‌​​​‌​​​‌‌‌​​‌‌‍the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.” Traders National Bank v. Rogers, 167 Mass. 315.

It is true that silence and аcquiescence alone does not estop a defendant in a suit upon аn alleged forged instrument from proving the forgery where the plaintiff ha's not been prеjudiced or damaged thereby. Corser v. Paul, 41 N. H. 24; Second National Bank v. Wentzel, 151 Pa. 142.

But where the holder of a note has been willfully misled as tо the genuineness of an endorsement thereon by one who purports to be the endorser and sustains damage or is prejudiced thereby, the alleged endorser will be estopped from denying the validity of the signature. Fall River National Bank v. Buffington, 97 Mass. 498; State v. Abramson, 57 Ark. 142; Casco Bank v. Keene, 53 Me. 104; Continental National Bank v. National Bank, 50 N. Y. 575.

*460Since the evidence tended to shоw that the language and conduct of the defendant, when the note in suit -was exhibited to him, was calculated to induce the plaintiff to believe that what purported to be the endorsement of the defendant was genuine, and that the plaintiff acted upon such belief to his damage, the motions to nonsuit and for a direction were proрerly denied.

This conclusion, in effect, also disposes of the numerous objections ‍​‌​​​​‌‌‌‌​​‌‌​​‌‌​‌‌‌​‌‌​​‌‌‌‌​​‌​​​‌​​​‌‌‌​​‌‌‍made to the refusal of the judge to charge as requested.

It is also objected that the trial judge qualified certain other requests charged.

But we find no error therein. It is well settled that a judge is not required to adopt the form, or the words, or the colloсation of phrases in which a request to' charge is framed; and having stated the legаl rule called for, he may, in his discretion, further elaborate it by applying to it any pоssible-phases of the testimony. Pavin v. Worthen & Aldrich Co., 51 Vroom 567.

It is objected that the court erroneously instructed the jury in effect that the evidence as to the financial dealings of the parties might be considered in determining whether or not the defendant was likely to have endorsed thе note.

We think that charge, in view of the evidence, was proper.

The rule is that where the defence set up is forgery, the evidence of finаncial dealings of the parties is ‍​‌​​​​‌‌‌‌​​‌‌​​‌‌​‌‌‌​‌‌​​‌‌‌‌​​‌​​​‌​​​‌‌‌​​‌‌‍admissible as tending to show the probability or improbability of the defendant having signed the note. 8 Cyc. 259; Crosby v. Wells, 44 Vroom, 790; Fromme v. Dennis, 16 Id. 515.

We have examined the objections relating to the admission of evidence, as well as all other objections, and find no merit in them.

The judgment will be affirmed, with costs.