11 Ky. Op. 487 | Ky. Ct. App. | 1882
Opinion by
This action was instituted on a note for $578 against W. R. and D. R. Maupin, and a verdict and judgment rendered against them. The principal in the note, and John Maupin, who was also a surety, were not before the court or made parties. During the pendency of the action W. R. Maupin died and the suit was revived against his administrator. The order of revivor was made more than six months after the qualification, and although notice was given of the intention to revive within the six .months, no objection was made at the time of revivor, and it is now too late to raise the question.
Both of the appellants pleaded non est factum, alleging in specific terms the alteration of the note after its execution and delivery to the payee. On this plea an issue was formed and a verdict under proper instructions rendered for the plaintiff. The verdict on this branch of the case was sustained by the proof and can not, therefore, be disturbed. It is assigned for error, however, that the plaintiff in the action was allowed to testify against the personal representative of W. R. Maupin. He was a competent witness, for the reason that John Maupin, who was an heir or devisee of W. R. Maupin, was introduced and examined in chief touching the issues made, and although his interest was slight, being an heir to the undevised estate amounting to forty or fifty dollars, he was interested in the result of the litigation-, and having testified • against the plaintiff, made the latter a competent witness. The plaintiff had previously testified as against D. R. Maupin, the living surety, but his testimony was expressly excluded in so far as it affected the liabil
The appellee, for reply to this paragraph of the answer (No. 3), denies that the defendant never authorized the execution of the note or that he did not sign the note or make his mark. He denies that the person who signed the name of the defendant had no authority to do so. There is no denial of the allegation that the mark was made by another without written authority. The traverse is, “he denies that the person who signed the same had no authority to do so.” The authority might have been in parol, and if so it was not binding on the surety, the statute expressly providing that to bind the surety the authority to execute the note or obligation for the surety must be in writing. There was no issue on this defense for the jury to try, and the verdict should have been for the appellant, D. R. Maupin. The court below holding the traverse sufficient, the case went to the jury on testimony conflicting as to the manner in which the signature or mark of this appellant was made to the note. The proof for the plaintiff, the principal obligor being the witness, is to the effect that this was a note in renewal of other notes for which the appellants were bound as surety, and that after explaining fully the nature of the note and its amount the name of the appellant, D. R. Maupin, was written by the witness, the appellee, with appellant’s own hand hold of the pen as the signature was being made, and that appellant made his mark. This is denied by the appellant, insisting that no such authority was given and that he never touched the pen nor knew his mark was made.
As the case must go back for another trial it is proper to again
Here the appellant took hold of the pen and the witness wrote his name, the appellant then making his mark. The act was in fact done by the principal in person, and the question of agency, if the witness for the appellee is to be believed, does not arise. A witness must attest the written authority only, and no attestation is necessary when the surety participates in its execution by making his mark or holding the pen as another makes it for him. Suppose the appellant had not been blind, and made his mark as testified to by the witness for the appellee. Can it be doubted that this would be the act of the principal and not the agent? The fact of his being blind might, and doubtless would, cause the court and jury to be cautious in enforcing the liability; still, if the proof, as in any other case, is sufficient to satisfy the minds of the jury that the appellant made his mark to the paper, knowing the nature of the obligation he was signing, the judgment should go against him. In arriving at such a conclusion the testimony on both sides of the issue will be weighed, for we are only discussing the question as if there were no testimony for the appellant. It must be recollected that the appellant’s testimony is in direct conflict with that offered by the appellee, and it is the province of the jury to pass on the questions of fact. Our attention has been called to Civ. Code (1876), § 732, defining the words “signature or subscription.” The words “signature” or “subscription” and words of like import include a mark by or for a person who can not write, if his name be subscribed to an instrument and witnessed by a person who is near thereto, and writes his own name as a witness. The'Civil Code is intended to regulate the practice in civil cases, and it is in reference only to the executon of such instruments as is required to be executed under the provisions of the code that this construction or
As the pleadings stood in this case the appellant was entitled to the verdict and judgment, and for that reason the judgment is reversed and cause remanded for further proceedings consistent with this opinion. As.to W. R. M'aupin, administrator, the judgment is affirmed.
