This was an action upon a promissory .note, the signature and execution of which was denied by the defendant. The verdict and judgment being in favor of- the defendant, the plaintiff has appealed.
It appears from the record in the case that the note purported to have been witnessed by two persons, and on the trial the evidence of one witness, taken by deposition, was read before the jury, but no evidence was offered by the other witness, and no evidence was offered explaining his absence. The appellant also, to prove the genuineness of the signature of the respondent, called the respondent as a witness, and interrogated him as to the genuineness of his purported signature
It is contended by the appellant that the court erred in sustaining the respondent’s objection to the offer of the plaintiff in evidence of the answer of the respondent filed in the case, bearing the admitted signature of the respondent, to be used as a standard for comparison with the disputed signature to the promissory note in controversy, and also the two checks. The only question therefore to be decided in this case is as to whether or not the court erred in excluding the evidence. It will be noticed that tne respondent admitted that the signature to the answer was his signature, and that any question, therefore, as to the genuineness of the signature to that document,
The only evidence as to the checks was that they were drawn by the witness in favor of the respondent, and were subsequently returned to him with the signature of the respondent, purporting to be his, indorsed thereon. That he had never seen the respondent write, and had no knowledge of his signature other than the fact that his name purported to be indorsed upon the checks when returned to him from the bank. In the view we take of these checks, there was not sufficient proof of the genuineness of the respondent’s signature thereon to warrant the court in admitting the checks in evidence as standards of comparison, and that the court was therefore right in excluding them.
It is further contended by respondent that the method of proving the execution of instruments in this state is prescribed by chapter 4, Civ. Code, embracing sections 961 to 979, inclusive, but more particularly sections'976 and 978. Section 976 provides: “Proof of the execution of an instrument, when.not' acknowledged, may be made either: (1) By the party execut
These views'lead to a reversal of the judgment and order denying a new trial, and the same are reversed.