John A. Shank & Co. v. Geiger
132 Miss. 320
Miss.
1923
Check Treatment
Ethridge, J.,

delivered the opinion of the court.

. The appellant, Shank & Co., sued the appellee on certain acceptances payable to the order of the Commercial Jeivelry Company and assigned by that company to the appellant. The acceptances were drafts drawn to the order of the Commercial Jewelry Company two and four months after their date, and were dated December 16,1921. The appellant filed suit on these acceptances in the justice court, and there was a judgment in that court for the defendant, from which an appeal is taken to the circuit court. In the circuit court the defendant Geiger, filed a plea of non est factum, in the following words:

“Comes the defendant and says that he did not sign .the acceptances sued upon and did not authorize any one to sign the same for him and that the same are not his act and deed and of this he puts himself upon the country.”

Plaintiff proceeded to trial without applying for a continuance or making a showing of surprise and without making any further application or taking any step to defer the trial of the cause. The attorney for the appellant testified on the trial of the cause that he brought suit in the justice court and appeared at the trial representing the appellant, and that the defendant, Geiger, appeared at the same time and place, and on the trial of the case these two original notes were introduced in evidence on the part of the plaintiff and that the question was asked Geiger, the defendant, “Is that your signature?” and his answer was, “Yes.” He also placed Geiger on the witness stand as an adverse Avitness and asked him the question:

*324“Is that or not your signature there? A. It favors my signature, but it is not, because I did not sign no notes. Q. Yon mean to say you did not write that? A. No; I did not sign any notes. Q. How about that note? A. I did not sign it — did not sign no note at all. Q. You remember me asking you on the 1st day of July, 1922, if that was your note and you said, ‘That is my signature?’ A.' I said it favored my signature. Q. You said it was? A. No, sir; I said it favored my signature. Mr. Chandler asked me if that was my signature, and I said it favored it, but I did not sign no note.”

There was a verdict in the circuit court for the defendant, and thereafter the attorney for the appellant wrote to the jewelry company for any correspondence which it had with the defendant with reference to such acceptances and obtained from the jewelry company a letter addressed to the jewelry company and signed by the defendant, reading as follows:

“As my note Avill be due bn the 16th of February, I have been closed up for the last two weeks on account of sickness, and I have only sold fifteen dollars and thirty cents Avorth of goods. The purses and rings sell very well but there are no sales for the rest of the goods. And as I am now thinking of going out of business I Avill have to return the balance of the goods and settle for Avhat have been sold.”

On receipt of this letter the attorney filed a motion for a new trial on the ground, among others, of newly discovered evidence, claiming that he had no knowledge of such letter at the time of the trial. The motion for a new trial was overruled.

It is first contended that the plea of non est factum is insufficient because it does not deny that the instrument sued on was delivered to the Commercial Jewelry Company, and that it is not sufficient merely to deny the signature. We think the plea is sufficient to shoAV a denial of both the signature and the delivery.

*325It is alleged that the instrument sued on was not signed by the defendant nor any one authorized to sign for him, and that it was not his act and deed. This plea being properly sworn to placed the burden upon the plaintiff to prove the execution of the note. We think the contention that the letter was newly discovered evidence in the legal sense and that a new trial ought to have been granted for that reason is without merit because the plaintiff knew the acceptances were taken by and payable to the jewelry company, and if he desired to know any facts bearing on the execution of the note, that was the proper place to have made inquiry and to have learned whatever facts to be obtained by such inquiry. A party must not only not know of a fact at the time of the trial, but he must show also that he could not have learned the fact by the exercise of reasonable diligence. The plaintiff made no inquiry and was contented to submit the issue on the testimony'of his attorney and the defendant, and must abide the result of that decision.

We find no reversible error, and the judgment is affirmed.

Affirmed.