Hopkins v. Megquire

35 Me. 78 | Me. | 1852

Appleton, J.

— The plaintiff claims to recover as the indorser of a note, signed by the defendant, payable to Pierce & Pool or order, and by them indorsed. To prove the indorsement of the note, he called a witness, who on his direct examination, testified that he had seen Pool write five or six times and that it was his strong impression that the indorsement was in his handwriting ; that it looked like it; and, being cross-examined, he said, that the writing on the back of the note resembled Pool’s, but that he could not swear to the indorsement nor to his writing. It is insisted, by the counsel ' for the defendant, that this evidence is not sufficient to prove an indorsement. All that a witness, called in such cases, can be expected to testify is, that the handwriting in question resembles that of the person, whose it purports to be ; in other words, that it looks like it. Prom the resemblance between the signature before him, as compared with those of the same person previously observed, the witness has drawn the inference that they were made by one and the same individual. The strength of his belief will depend on the greater or less degree of similarity. He can only testify to his own state of mind on this question. The language used as indicative of the strength of his belief, was properly before the jury for their consideration, and it was for them to determine its sufficiency to establish the fact, which it was offered to prove. When the witness stated that he could not swear to the handwriting nor to the indorsement, he was probably understood by the jury as referring to his own knowledge, and not as intending thereby to limit or restrain the testimony previously given, and it is not for us to say that they misunderstood him. Hammond’s case, 2 Greenl. 33 ; Page v. Homans, 14 Maine, 478.

The claim for lumber tortiously converted was not the proper subject of set-off by virtue of the provisions of R. S. c. 115, § 28. “The price of real or personal estate sold” is specified as among the demands which shall be set off. No sale of the pickets charged is proved. When goods and chattels tortiously converted, have been sold and the money received from such sale, the party injured has been permitted to recover such proceeds. To this extent the doctrine of waiving torts and maintaining assumpsit has proceeded and no further. In no case has a recovery in assumpsit been allowed for goods converted as in, a sale. Jones v. Hoar, 5 Pick. 285; Osborn v. Bell, 5 Denio, 370.

In the account filed in set-off was folded a note of Pierce, payable to the defendant. R. S. c. 115, § 25, requires that “ the defendant shall file a statement of his demand,” and that “ the clerk shall enter on the same the day when it was filed.” The note was between others than the parties to this suit. No statement of his demand was filed by the defendant, nor did it appear from any thing filed, what connection the note had with the cause or why it was filed. It' was therefore properly excluded. Exceptions overruled.

Judgment on the verdict.

Shepley, C. J., and Wells and Rice, J. J., concurred.