165 Ind. 226 | Ind. | 1905
Appellant, plaintiff below, as a hona fide holder of a promissory note payable at the Home National Bank of Thorntown, Indiana, sued thereon to recover against the defendant, John C. Hill, appellee herein. The latter answered the complaint in three paragraphs, the first of which was subsequently withdrawn. The second was a verified plea of non est factum. By the third paragraph he set up certain facts disclosing the method by which his signature to the note in suit was obtained by Joseph D. Cunningham. Appellant’s demurrer to the third paragraph of the answer was overruled. Eeply: (1) General denial; (2) that appellant had no’notice of the fraudulent manner in which the signature of appellee to the note was procured, but took the same, in the usual course of business, for a valuable consideration, etc. The trial court made a special finding of facts, and stated a conclusion of law thereon, to the effect that appellant was not entitled to recover on the note, to which conclusion it excepted. ' Final judgment was rendered in favor of appellee.
The alleged errors upon which appellant relies for a reversal are (1) overruling its demurrer to the third paragraph of the answer; (2) that the court erred in its conclusion of law on the special finding of facts.
1. As the facts stated in the findings and those alleged in the third paragraph of the answer are substantially the same, it is not essential, therefore, that we review the sufficiency of the latter paragraph, as the same questions raised by the demurrer thereto are presented by the exception to the conclusion of law on the special findings. Ray v. Baker (1905), ante, 74, and cases cited.
The court finds that the signature of the defendant John O. Hill, appellee herein, was procured to said note under the following circumstances: That long prior to the date of this instrument, Elisha E. Kirk had been duly appointed by the Boone Circuit Court as the guardian of Cornelia M. Eobinson, a minor. The defendant Hill was the
2. Appellee having controverted the execution of the note in suit by a verified plea of non est factum, the burden, therefore, of proving its execution rested on appellant. Fudge v. Marquell (1905), 164 Ind. 447, and cases cited.
To recapitulate the material facts, it may be said to appear that appellee was the surety on the bond-of one Kirk, who was the guardian of a certain minor, which guardianship was pending in the Boone Circuit Court. He was also liable as the indorser on a note which was given for the benefit of said estate, and had been indemnified as such indorser by a mortgage executed by the guardian on the property of the ward. Cunningham was the attorney representing the guardian in said trust, which fact at the time of the transaction was well known to appellee. Some time previous thereto Cunningham, it appears, entertained the fraudulent purpose of procuring the signature of appellee to the blank promissory note in question without appellee’s
' That the facts justify the court’s conclusion thereon is beyond successful controversy. It may be said that appellant, under the facts, falls far short of establishing in the eye of the law the execution of the note in suit on the part of appellee. Neither can it be asserted that under the circumstances he negligently signed -the note, and'that therefore the cause must be ruled by the maxim or principle which affirms that whenever one of two innocent parties must suffer by the acts of the third party, the one must bear the loss who has enabled such third party to occasion or bring the same about. A person, in the absence of negligence or proper precaution, whose signature is obtained to negotiable paper by an artful trick or by the methods employed in this case, is, in a legal sense, no more liable thereon, even in the hands of a bona fide holder, than he would be were the note an absolute forgery. Webb v. Corbin, supra.
In Baldwin v. Brisker, supra, this court said: “It may be that an illiterate man who is unable to read will, in some cases, he guilty of negligence in not having the paper read to him by one whom he knows to he disinterested; but whether he is so or not must generally be a question for the jury. Mr. Daniel, in speaking of this class of cases, says: ‘But in all such cases the question of negligence is difficult of legal solution, ,and no absolute invariable rule can well be laid down. If the paper be ostensibly read to one who can not himself read, it is still to him a matter that must rest on faith; and if he takes due precaution to ascertain its true character, it would be a great hardship to inflict responsibility upon him which he did not intend to assume. And what is due precaution must be determined by the peculiar circumstances of each case.’ 1 Daniel, Meg. Inst., §849.”
Appellant’s contention that appellee did not exercise proper precaution or care in the matter or transaction in question is not' sustained by the facts. That Cunningham was enabled to carry off the blank notes after he had obtained appellee’s signature thereto, and then convert one of them into a negotiable promissory note, and discount it at appellant’s bank, does not, under the facts, appear in any manner to be due to an absence of proper precaution or care ’ on the part of appellee. The following cases, in addition to those heretofore cited, support the doctrine or principle which we affirm and adhere to in this appeal: First Nat. Bank v. Lierman (1876), 5 Neb. 247; Green v. Wilkie (1896), 98 Iowa 74, 66 N. W. 1046, 36 L. R. A. 434, 60 Am. St. 184; Soper v. Peck (1883), 51 Mich. 563, 17 N. W. 57; Gibbs v. Linabury (1871), 22 Mich. 479, 7 Am. Rep. 675; Whitney v. Snyder (1870), 2 Lans. (N. Y.) 477; National Exchange Bank v. Veneman (1887), 43 Hun (N. Y.) 241; Butler v. Carns (1875), 37 Wis. 61; Kagel v. Totten (1882), 59 Md. 447; Trambly v. Ricard (1881), 130 Mass. 259; Griffiths v. Kellogg (1876), 39 Wis. 290, 20 Am. Rep. 48; Bowers v. Thomas (1885), 62 Wis. 480, 22 N. W. 710; Willard v. Nelson (1892), 35 Neb. 651, 53 N. W. 572, 37 Am. St. 455.
It follows that the judgment below is a correct result, and is therefore affirmed.