1 Iowa 159 | Iowa | 1855
Tbe facts of tbe case leading to tbe questions wbicb arise, are as follows: By a writing, dated tbe 12tb of August, 1851, signed by Hyde and Woolfolk, Woolfolk agrees to erect a barn 'for Hyde, by tbe 1st of May, 1852, and Hyde agrees to furnisb all tbe materials for tbe barn, board Woolfolk and bis bands, while engaged in tbe work, and to pay bim “ tbe sum of one hundred and twenty-five dollars, in manner following, to wit: one gray horse, valued at eighty-five dollars, and tbe balance in good cash notes.” On tbe same 12th of August, 1851, Woolfolk, and Bacon, as bis surety, executes and delivers to Hyde a penal obligation, with a condition as follows: “ Whereas tbe above bounden Hiram J. Woolfolk, has this day contracted with tbe said Charles J. Hyde, to build for bim, on bis farm (in, &c.,) a barn, wbicb barn is to be finished according to a written Contract '(marked A.), by tbe 1st day of May, A» D. 1852»
The action is brought upon this bond, agginst Woolfolk and Bacon, the plaintiff alleging, that he has performed all his covenants and agreements, in said contract specified, but that said Woolfolk has neglected ahd refused to perform his agreement or any part thereof, and still does wholly neglect and refuse soto do,”. &c. Woolfolk makes default. Bacon answers, alleging: First. That he did not undertake or promise in manner and form, &c. Second. That he did not sign the bond in the petition mentioned, and avers that his namb - affixed thereto was done without his knowledge, privity, or 'consent. And he adds other defences not material, in the view which we take of the case; also an affidavit of denial under the statute — to the sufficiency of which, objection is now made, on argument, for the first time, so far as appears. As this objection was not made below, we pass it. The trial took place on the 7th of January, 1854, and the jury returned a verdict for the defendant Bacon, and the court rendered judgment accordingly. A bill of exceptions was taken, and the cause brought to this court.
The first error assigned, is, that the court erred in admitting the mortgage in evidence as shown by the bill of exceptions. It appears, by the bill of exceptions, that Bacon, in order, by comparison, of handwriting, to sustain his denial of the signature of the bond, in which he purported to be surety, offered in evidence a mortgage deed, purporting to be signed by him, and dated. 8th of October, 1842, by which he conveyed in mortgage to one John B. Bacon, a tract of land, situate in the county of McDonough, state of Illinois, and to which deed is affixed the following certificate of acknowledgment:
“ State of Illinois, ) gg McDonough county, j
This day personally came before me, the undersigned,
[l.s.] James W. Campbell, Cleric, 1 By J. H. Baker, Deputy.” j
This instrument did not purport to be recorded. The defendant claimed that tbe mortgage deed proved its own genuineness, and tbe genuineness of tbe signature. Tbe plaintiff objected to its admissibility as evidence, for this purpose, but tbe court overruled tbe objection, and admitted tbe instrument. .
In this we think tbe court erred. Tbe whole question stands on section 2404 of .the Code, which is, that “evidence respecting handwriting, may be given by comparison made by experts, or by tbe jury, with writings of tbe same person, which are proved to be genuine.” Tbe standard writing must be proved to be genuine. Tbe very idea of proving bandwriting by comparison, implies of necessity, tbe establishment of tbe genuineness of tbe standard. Tbe court is not prepared to adopt tbe suggestion, that the standard writing may be proved by witnesses wbo have only seen tbe party write, for this is, in effect, fixing the standard by comparison; it is supporting a probability by a probability. Two obvious methods of proving tbe standard writing, are; first, by tbe testimony of a witness or witnesses wbo saw tbe party write it; and secondly, by tbe party’s admission, when not offered by himself. We do not mean to say, that these are tbe only methods, but only that tbe proof must be positive.
But is not such instrument evidence of the genuineness of tbe signature of the party? We think not. And two .principal reasons present themselves to sustain that conclusion. Eirst; by section 1228, of the Code, the record, or a ■copy of it, may be admitted in evidence, instead of the original; and secondly, a party may execute an instrument by the hands of another, and this is sometimes done; and when he adopts the act, the instrument is his — the execution of it is his, in the legal sense. What are the terms of the statute in relation to acknowledgments ? Section 1219 of the Code, ■directs the officer to certify “ that such person acknowledged the instrument to be his voluntary act and deed.” He does not acknowledge the signature genuine ; but if another actually used the pen, he adopts the signature. We are not inclined to place emphasis upon precise words, but it may be proper to refer to the second division of the same section, directing the officer to certify him to be the identical person, whose name is-affixed to the deed, indicating that it is not necessary to certify to'-the genuineness of the signature.
It is further claimed, that this instrument was admissible under section 2407 of the Code. It may be doubted whether this section would apply to such an instrument as the one in question, inasmuch as section 1227 is a provision specially relating to such instruments, and section 2407 seems designed to bring other papers within the same rule. But it is not necessary to determine this, for if it is applicable to conveyances, still the remarks before made upon the execution -and acknowledgment of the deed in question, would
Tbe second and third errors assigned, relate to tbe admission of Sample and Box to testify as experts. Although tbe previous question would dispose of tbe case in this court, yet, as this second question may arise again, in tbe same or any other cause, we consider it. Tbe question is as to tbe competency of these witnesses as experts, and, therefore, it is necessary to set out tbe substance of their testimony, bearing on their admissibility. E. Sample, being sworn as a witness, testified that “be was not an expert in tbe business of comparing bandwriting; that be bad never made it a business to compare or detect feigned or forged writings; that in early life be bad been a clerk in a store, afterward an editor of a newspaper, and for tbe last fifteen years a lawyer, but not all tbe time engaged in practice; that be presumed be bad some skill in comparing handwritings; that be bad, /during bis life, bad occasion to examine a good deal of writing, but did not pretend to any extra skill over business
The introduction of these persons as witnesses, was objected to, upon the ground that they were not experts, competent to testify as experts. The objéetion was overruled, and the witnesses permitted to testify. It is now, again, objected, that to be admitted as experts, they should possess the highest skill or information on the subject in question; must have studied or pursued the science, trade or art to which the subject belongs. It is true that persons giving evidence on a matter pertaining to their particular science,,, trade or art, come more strictly and technically under the term “experts;” but we cannot consent to the proposition-,, that no others come within it, and are allowed to be witnesses, in any case. It may very probably be true, that none are to be taken as experts on matters pertaining to a particular calling, art or science, but those who are, or havo been, practiced in such art or science. But there are many subjects of inquiry which do not belong to a particular -art,, &c., but on which a greater or less degree of knowledge is. common to many men in different callings. Take the instance of bank bills. On these, the best expert would be a counterfeiter, and the next best, men employed in banks,, or, perhaps, engravers; and then, the business men of the-community. Now, the law does not require the testimony of the best of these, before the others can be admitted. The-testimony of them all, is equal in grade, though it may differ in value or weight, as it comes from one or the other. 'It is so in the comparison of handwritings. The best witness may be a forger,, or a banker, &c., but the testimony of a
The fourth error assigned, is the giving the fourteenth instruction to the jury. We cannot determine whether this was error or not. This depends upon the proof in the case. The statement of evidence in the bill of exceptions is imperfect and obscure, and it is not said that that is all there 'was on the trial.
The judgment is reversed upon the first error assigned, and remanded for further proceedings not inconsistent with this opinion.