209 Pa. 603 | Pa. | 1904
Opinion by
This suit in the court below was on a note under seal dated March 3,1898, payable one day after date in the sum of $3,700 with power of attorney to confess judgment. The note pur
Before adverting to the evidence of the expert and nonexpert witnesses who testified with more or less positiveness to the genuineness or falsity of the signature, we notice first, the direct evidence as to what occurred, as alleged by plaintiff at the execution of the note. There are two attesting witnesses to it, Nathan Groff and G. F. Groff. One of them, G. F. Groff, is the husband of Maria Groff, the plaintiff, and Solomon C. Groff being dead is therefore incompetent; the other, Nathan Groff, is her son and not disqualified, and was called as a witness by her. He testified he was thirty years old and that he saw the note signed by Solomon C. Groff, his grandfather. The paper then being placed in his hands, he testified as follows: “ Q. Is that your name ? A. Yes, sir. Q. Did you write it? A. Yes, sir. Q. Whose name is underneath your name? A. G. F. Groff, my father. Q. Who is G. F. Groff? A. My father. Q. State whether or not you saw your father, George F. Groff, write his name there as a subscribing witness. A. Yes, sir. Q. Now, I ask you to look at the signature, ‘Solomon C. Groff,’ and state to the jury if you saw him write that name. A. Yes, sir. Q. Who wrote the name there, ‘ Solomon 0. Groff ’ ? A. Solomon C. Groff. Q. State whether or not you witnessed that paper at the time he wrote it. A. Yes, sir. Q. Where was that done? A. In the kitchen. Q. Of whose house ? A. Our house.”
This witness was subjected to a most thorough cross-examination which in no respect served to shake his statement in chief, therefore no matter how doubtful in itself might be his testimony, or how doubtful it might be made to appear sub
The assignments of error as to rulings on offers of evidence are altogether independent of the testimony of the' attesting witness, for putting him out of the case entirely it would have been possible to sustain the note or establish it to be a forgery on the opinions of competent witnesses as to the genuineness or spuriousness of the signature. There was much evidence of this character on both sides. The first eight assignments raise the substance of appellant’s complaint as to the court’s rulings on the evidence. A number of witnesses testified on behalf of defendants, that they had known Solomon C. Groff, were familiar with his signature and would know it when they saw it; they then, in most cases, stated particularly their opportunities for becoming familiar with the signature and that they could form a judgment as to the genuineness of it from their knowledge of it; they did not pretend to testify as experts but as men who from frequent sight of his signature were able to tell it when they saw it. After thus qualifying themselves to give an opinion, counsel for defendants would place before the witness the note in dispute, followed by this question, “ What is your opinion and belief as to that signature ? ” followed generally in substance by the witness’s answer, “ I don’t believe that is his signature.” Then, on cross-examination, counsel for plaintiff declaring his purpose to test the extent of witness’s ability to form such a judgment as he professed to possess, exhibited to him a paper on which was written the name “ Solomon C. Groff ” which was placed inside an envelope, but so that through an aperture cut in the envelope the entire name could be plainly seen, and asked, “ In your judgment is that Solomon C. Groff’s genuine signature ? ” Sometimes the witness answered it was, and at times that it was a forgery. Quite often it was shown the witness was mis
If the witness had answered, “ I could distinguish the signature if I saw it appended to a note or check or other document, but standing by itself I could not be sure,” the court would doubtless have sustained the objection of defendants’ counsel, but as the record stands, we see no error in the court’s rulings. The authorities cited by counsel for defendants in view of the examination in this case are without application. The opinion of Judge Cooley in Insurance Co. v. Throop, 22 Mich. 146, itself shows the distinction between most of the cases and the one on hand. He says: “ A man may recognize even a casual acquaintance, his whole person, size, height, carriage, peculiar
The ninth assignment that it was error to permit the use of an admittedly genuine lead pencil signature as a standard of comparison is also overruled. First it is denied that the signature was made with a pencil; it is alleged that it is in what is called indelible ink; but assume that it was in pencil, there is no rule of evidence that we are aware of, which prohibits the use for comparison of a genuine lead pencil signature.
As to the tenth assignment, from Travis v. Brown, 43 Pa. 9, to Foster v. Collner, 107 Pa. 305, without a break, we have held that comparison of genuine signatures with the alleged spurious signature, are for the jury. Even as late as Rockey’s Estate, 155 Pa. 453, speaking by our Brother Thompson, present justice, we held that comparisons were for the jury alone, that even experts could not make them. Less than two years afterwards, the act of 1895, supra, was passed permitting besides the jury expert witnesses to make comparisons. This
The eleventh assignment relates to the testimony of W. A. Melcher called by defendants. Undoubtedly this witness was qualified to testify as an expert and the court excluded part only of the testimony sought to be elicited from him, but what part? He had studied, analyzed and compared the signature of Solomon C. Groff on the note with specimens of his admittedly genuine signature; it followed that he was qualified to express an opinion as to Groff’s signature. But then in the course of his examination the witness was asked to express an opinion as to whether the signature had not been written by another person whose name was on the note or who had filled in part of the writing in the note. He had made only a partial examination of this person’s writing, had not analyzed nor critically examined it. It was objected to by plaintiff’s counsel ■ because he had not sufficient knowledge as an expert to testify as to this third person’s writing, although he could testify to the disputed signature. The trial judge sustained the objection. This is objected to as error. A careful reading of this witness’s testimony does not leave the correctness of the exclusion free from all doubt; from what he said himself as to his competency, it is very clear that in his opinion he was not competent, but from the examination he states he made, it is not so clear that he was incompetent. Nevertheless as counsel calling the witness was bound to clearly satisfy the court of his competency, we think he failed to come up to the measure of proof required to qualify him as an expert and there'was no error in excluding the rejected testimony.
The twelfth and thirteenth assignments complain that an expert witness called by defendants was not permitted to write a copy of the disputed signature upon a blackboard and then by alleged copies of authentic writings institute a comparison between them and the copy of the alleged forged signature. None of the cases prior to the act of 1895 nor that act itself authorize such a method of comparison. The act only authorizes expert comparison and opinion of genuine signatures and disputed signatures when they are placed in juxtaposition; there was no attempt to so place them by the expert; she sought only to place simulations of genuine signatures with a simula
The fourteenth assignment is wholly groundless. The fifteenth assignment complains that the court instructed the jury that if they found Solomon C. Groff made the note they should allow plaintiff interest. This was clearly correct; if they found the note genuine, they then found a debt due and pa}r-able as if of the day of its date; the law then fixed that lawful interest was payable; even if the jury had not added interest the court could have done so after they brought in their verdict. It is true, where damages for the exercise of the right of eminent domain are awarded, interest is generally in the discretion of the jury; and so in some cases of trespass, but on a debt past due and payable evidenced by contract, interest is demanded as of right.
The remaining three assignments have no merit warranting notice.
All the assignments of error are overruled and the judgment is affirmed.