92 Vt. 460 | Vt. | 1919
The claimant seeks to recover of the estate of A. J. Barron the amount of a promissory note dated January 2, 1909, payable on or before five years after date with interest annually at the rate of five per cent. The note purports to be signed by A. J. Barron, the defendant’s intestate. The case came into county court on appeal from the report of the commissioners disallowing the claim against his estate and the order of the probate court approving the same. Defendant pleaded the general issue, and by notice put in issue the execution of the note. A trial was had by jury, resulting in a verdict for the plaintiff, and judgment was entered on the verdict.
The plaintiff’s evidence tended to show that prior to January 2, 1909, the intestate had given her two similar notes, one dated January 2, 1899, and one dated January 2, 1904, the second being in renewal of the first, and the note in suit, in renewal of the second.
It appeared that A. J. Barron was the priest of the Roman Catholic Church at Richmond, this State, from 1884 up to about May, 1891, and of the St. Francis de Sales Church at Bennington from 1892 to 1912. He is often referred to by witnesses in giving testimony, and also in this opinion, as “Father Barron.”
Rev. Joseph F. Grillis, called as a witness by the plaintiff, testified that he had been stationed at Burlington as a priest of the Roman Catholic Church during the past eighteen and a half years; that shortly after his arrival there he became personally acquainted with Father Barron and occasionally corresponded with him in connection with the witness’s duties, about matters referred to in the correspondence; that when there was business to
The original records of St. Francis de Sales Church at Bennington from 1892 to 1912 being produced in court, the witness testified that they came by mail from Father Barron, at least supposed to come from him at Bennington; that the witness found them in the archives of the diocese, at Burlington, the place where those records are usually kept; that at the time those reports were received at the diocese, the witness was secretary and chancellor of the diocese, and as such, in the performance of his duties, he usually received the letters sent to the Bishop by the different priests, and answered a great many of them. The witness was then shown the reports mentioned for the years from 1892 to 1912, except for the years 1908 and 1911 which contained only typewritten signatures, and was asked to state in whose handwriting the signature A. J. Barron on each one of them is, in his opinion. Counsel for plaintiff stated that if these signatures are proved as in the handwriting of A. J. Barron, he offered them as standards. Subject to exception, the witness answered that in his opinion it is the handwriting of Father Barron. The stated ground of the exception was that there had been no basis laid upon which the witness could give
This exception is not well taken. The testimony of the witness shows that he had seen letters purporting to be subscribed by the intestate in his own handwriting, and that, by way of answering these letters, the witness personally communicated with the intestate concerning the subject-matters thereof and acted upon them as his letters, of which the latter must have known by the answers he received, and acquiesced therein; also, that the reports received from the St. Francis de Sales Church, purporting to be signed in writing by the intestate, were habitually submitted to or seen by the witness in his official relation to the diocese. Upon this evidence the witness is deemed to be acquainted with the handwriting of the intestate, and there was no error in the ruling made. Redding v. Redding’s Est., 69 Vt. 500, 38 Atl. 230; State v. Kent, 83 Vt. 28, 74 Atl. 389, 26 L. R. A. (N. S.) 990, 20 Ann. Cas. 1334. Such acquaintance with the intestate’s handwriting being shown, the witness was properly permitted, against exception on the same ground, to testify that in his opinion the signature to the note in question (plaintiff’s Exhibit 1) is in the handwriting of the intestate. For this holding, the two cases cited above are full authority. And the signatures on the reports mentioned, when established by such evidence, could properly be received as standards. Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853; State v. Ryder, 80 Vt. 422, 68 Atl. 652.
What we have said in overruling the exception saved in connection with the testimony of the witness Gillis, and the admission of the records mentioned therein, is controlling as to the similar questions raised in connection with the testimony of the witness Claremont, and the reception of plaintiff’s Exhibits 159, 160, 161, and 162, and the latter questions need not be further noticed.
Subject to exception on the ground of incompetency and irrelevancy, the plaintiff was permitted to show by Mr. Justice Haselton that in 1898 or 1899, some three or four years before his appointment to the bench, he received a draft or check from a life insurance company, payable to the plaintiff for $5,000, and that he handed it to her in his office at Burlington. It is urged that this evidence was erroneously received. We may assume this to be so, and yet the defendant was not harmed by it; for
This is also conclusive as to the question raised by the fifth exception. Edward W. Freeman, the stepson of the plaintiff and called by her as a witness, testified that within two or three years, or three or four years, of his father’s death (which occurred in 1901), the plaintiff showed him a certain paper one day on the train going from Burlington to Richmond. Subject to exception on the grounds that it was immaterial, irrelevant, and incompetent, the witness answered that it was a draft or check, should say right in the neighborhood of $5,000. He further testified that he did not notice, to whom it was payable, or if he did, he had forgotten. The defendant moved that this testimony concerning the paper be stricken from the record as immaterial, it not being shown that the draft or check was payable to the plaintiff. The motion was overruled and exception noted. Treating this evidence as wrongly received, it was harmless to the defendant for the same.reason as was that given by the preceding witness, and the exception is unavailing. The same thing is true as to the exception to the refusal of the court to strike out the testimony of this witness, to the effect that his father, prior to his death, distributed his estate to his wife and his children, the witness sajdng in cross-examination that, other
The same witness was asked in cross-examination whether he had been convicted of selling liquor without a license. On objection being made, the evidence was excluded and exception noted. Whether such evidence should be received as affecting the credibility of the witness, was a matter resting in the discretion of the trial court. State v. Shaw, 73 Vt. 149, 50 Atl. 863; McGovern v. Hays & Smith, 75 Vt. 104, 53 Atl. 326. And it not appearing otherwise, the ruling will be taken as so made. Gilfillan v. Gilfillan’s Est., 90 Vt. 94, 96 Atl. 704.
Defendant offered to show by E. C. Bennett that Mr. Enright, the attorney and representative of the plaintiff, said in Bennington prior to the meeting of the commissioners on the intestate’s estate, that the plaintiff told him that the intestate came to Richmond about the time of the expiration of the term for which one of the notes was written and paid her in cash five years’ interest, and $1,000 on the principal, at the same time giving her a new note for $5,000; and that Enright then had the note in suit in his possession. Exception was saved to the exclusion of the offer. How long prior to the meeting referred to those declarations were made, the offer did not disclose. It may have been days, weeks, or months. Nor did the offer indicate that they were made while Enright was performing some act within the scope of his agency, and with reference to the act which was being done. Barnard v. Henry, 25 Vt. 289; Baldwin v. Doubleday, 59 Vt. 7, 8 Atl. 576; Taplin & Rowell v. Marcy, 81 Vt. 428, 71 Atl. 72; First Nat. Bank v. Bertoli, 87 Vt. 297, 89 Atl. 359, Ann. Cas. 1917 B, 590.
Defendant offered the parish records which were produced by the witness Gillis for the years 1899 and 1900, for the purpose of showing that Father Barron did not report the original note as an obligation of the parish, and to their exclusion an exception was saved. Counsel then added to the offer, that the reports would show a list of individual owners of listed debts against the
No claim is made against the parish in this action, and whether the original note was reported by Father Barron as an obligation of the parish was immaterial to any issue in the case, and the addition to the offer did not make the evidence any more material. It had no tendency to show that he did not sign the note in question, and was properly excluded.
At the close of the evidence the defendant moved for a directed verdict in favor of the estate, on the grounds that it appeared hy the plaintiff’s testimony that the original indebtedness was incurred for the benefit of the parish at Bennington, and she was told that the money was for the use of the parish; that the Bishop’s signature was on the original note and on the renewal of 1904, and when the note in suit was given she requested Father Barron to have it signed by the Bishop when one should be appointed; that the last two notes were renewals and were not paid. The motion was overruled and exception noted.
Passing over the question whether the agency of the intestate for the parish in this respect could in law be shown by what he said and did at the time of, and in connection with, the negotiations with the plaintiff for the loan of the money, we will assume that in fact he borrowed the money for the parish and that the plaintiff then knew it. Yet the ruling was not erroneous. The undisputed evidence showed that the original note was signed by the intestate and by Bishop Michaud, each in his own name, and there was no evidence tending to show that the instrument contained anything upon its face showing that either was acting as
The foregoing holding on the question raised by the motion for a verdict shows that defendant’s first and second requests to charge, were unsound in principle, and therefore properly refused; also, that the several exceptions to the charge as given, found under paragraph XI of the printed case, are without force.
Exception was taken to the failure of the court to charge that the presumption of innocence is not conclusive. But in effect the court did so charge. It told the jury that the plaintiff was presumed to be innocent of the crime of forgery, and that this presumption is a piece of evidence in her favor to be weighed in connection with the other evidence in determining whether the signature in question is the signature of A. J. Barron, and that this question is to be determined on the whole evidence. This was sufficient. It so excludes the idea of con-elusiveness in the presumption as to leave nothing for argument.
The court charged that "It is immaterial when this note was signed, if it was signed by A. J. Barron, the defendant’s intestate.” The first clause of this quoted sentence is challenged. Bishop Michaud died on December 22, 1908, the funeral services were on December 29 at Burlington, and the funeral sermon was preached by Father Barron. During her examination by the defendant, the plaintiff testified that the latter came to her house in Richmond the week after Bishop Michaud was buried, she thinks on the 27th or 28th day of December; and in substance that he signed the note in suit on that occasion in the month of December. She further testified that she wrote the original note, ready for signing, and also each of the notes in renewal,
In the course of the charge the court referred to the fact that the defendant had called the plaintiff as a witness, adding: "They were not bound by her testimony, but her testimony is to be weighed as that of all witnesses called in behalf of the defendant, giving it its due weight.” To that part which stated that her testimony was to be weighed as that of all witnesses called by defendant, an exception was saved. It is argued 'that what the court there said cannot be understood otherwise than as directing the jury, in weighing the plaintiff’s testimony, to disregard her bias and her interest in her own claim in controversy. But looking at the sentence as a whole, this is a strained construction. She was called by defendant (under the statute, P. S. 1596) “to testify as a witness in his behalf, in the same manner and subject to the same rules as other-witnesses,” with the right to examine as in the cross-examination of witnesses. She was so examined, and her testimony was to be weighed like that of other witnsses called by defendant, (in the language of the charge,) “giving it its due weight.” Evidently this quoted phrase was designed to mean, and does mean when properly understood, the same as though it read, “giving it such weight as under all the circumstances it is fairly entitled to receive.” Thus understood, the charge was all that defendant could reasonably ask. Dravo v. Fabel, 132 U. S. 487, 10 Sup. Ct. 170, 33 L. ed. 421. If the defendant thought that, because of the fact that the witness was the adverse party to the suit, the matter of her interest and bias in giving testimony should be brought more specifically to the attention of the jury, a suggestion to that effect should have been made to the court. In the absence of any such
Judgment affirmed. To be certified to probate court.