160 Wis. 554 | Wis. | 1915
Lead Opinion
1. The note in suit fell due May 24, 1906, and was protested for nonpayment on that day. Mr. TInghes, the notary who protested the note, testified that he had no recollection of Mr. Skinner’s calling on him in reference thereto. The plaintiff promptly placed the note in the hands of his attorney, Mr. Kaumheimer, for collection, and Kaum-heimer wrote Skinner demanding payment on May 28th. No written reply was received, but Kaumheimer was requested by telephone to call on Skinner in reference to the matter. He did so and was advised by Skinner that he would not pay the note. Kaumheimer did not pretend to remember the conversation, but testified that his impression was that Skinner said there was some question about the signature. No suit was brought on the note by Kaumheimer. In 1907 the note was placed in the hands of Attorney Donovan for collection and remained with him for over a year and no suit was brought by him. Later, one Pestalozzi presented the note to Skinner for payment, which was refused. In May, 1910, the note was placed in the hands of Attorney Trottman for collection, who demanded payment, which demand was refused. In 1911 appellant placed the note in the hands of Attorney Blatchley with instructions to sue, but no suit was brought and the note was returned to the plaintiff. Nothing further was done until after Mr. Skinner’s death, which occurred a few weeks before the statute of limitations would have run on the note. It was then filed as a claim against Skinner’s estate by Attorney Wegner.
. The appellant argues that it was the duty of Skinner to promptly advise the bank which held the note for collection
It appears without dispute that Mr. Skinner promptly declined to pay the note when first requested so to do, and that he persistently and consistently declined to do so thereafter until the time of his death. It is difficult to see wherein the acts referred to constituted evidence of ratification of the signature, or wherein Skinner waived any right to set up the defense of forgery or how he estopped himself from so doing. A party who refuses to pay a note that is presented to him does not thereby waive or lose any legitimate defense he may have to an action brought on the instrument. It would be just as reasonable to claim here that the defense of payment or of no consideration was lost to Skinner as it'is to claim that the defense of fotfgery was lost. Skinner neither said nor did anything to lead the plaintiff to believe that he did not intend to rely on any legitimate defense he might have. The case is not one where the plaintiff was misled to his disadvantage into believing that some defense other than that finally interposed was relied on. It is apparent that the plaintiff was not in fact misled. Skinner was understood to be a man of means, amply responsible for the amount of the note. Plaintiff knew that the note had not been paid, and, if it represented a good-faith transaction, forgery was about the only defense left. Kaumheimer understood that the refusal to pay arose over the signature, and presumably so informed his client. That plaintiff understood where the trouble lay, is quite evident from the fact that when the note was given to
2. Pursuant to notice served on her, the executrix produced a note for $500 dated in October, 1905, and another for a like amount dated in February, 1906. Both of these notes were signed by Lloyd Skinner and indorsed by J. W. Skinner. Admittedly the signature “J. W. Skinner” on these notes was genuine. She also produced two small notes executed by Lloyd Skinner in 1902, aggregating $90, which bore the name “ J. W. Skinner” on the back. It is conceded that if the name of J. W. Skinner was a forgery on the note in suit it was also forged on these notes, and that the same party wrote all three signatures. J. W. Skinner waived protest on these two notes, and from the fact that they were found among his effects it is fair to presume that he paid them. Four other notes signed by Lloyd Skinner and containing the name of J. W. Skinner on the back were also produced, one dated March 5, 1902, for $700; one dated January 23, 1906, for $1,000; one dated March 14, 1906, for $1,000; and one dated April 25, 1906, for $1,528. It is conceded that the same party who wrote the name'1 “ J. W. Skinner” on the note in suit also wrote the name on these notes, and that if any of these signatures were forgeries all of them were. The indorsement on at least three of the four last mentioned notes was passed as genuine by the cashier of the First National Bank, where Mr. J. W. Skinner kept an individual account, and where the Northwestern Mutual Life Insurance Company, of which Mr. Skinner was secretary, also kept a large account; so that the bank officials had every reason to be familiar with his signature.
The court refused to receive these several notes in evidence, and it is insisted that this ruling was erroneous for the following reasons:
(a) The proof was competent to show that J. W. Skinner adopted as his own the signature in question and ratified its use.
(c) In any event the proof was competent as tending to show that the signature was in fact genuine.
On the first two of the above propositions it is claimed that if adoption, ratification,, estoppel, or waiver was not established as a matter of law, the notes, in connection with the evidence offered in relation thereto, constituted proof from which the jury might find the fact in plaintiff’s favor on one or more of these issues.
These contentions raise rather novel questions. Lloyd Skinner and J. W. Skinner were half-brothers. J. W. Skinner held an important office in one of the large life insurance companies of the country. If his half-brother had forged his name, he was no doubt anxious to conceal that fact and to shield his relative from the penitentiary. Whether his conduct was reprehensible or not, it was not very unusual. If he violated the law, he followed the custom of human nature, generally speaking at least. If the plaintiff had been misled or deceived, or parted with his money on the strength of this conduct, a very different question would be before us. But he knew nothing of the existence of these notes until the trial of this case, more than six years after he parted with his money. Broadly stated the proposition is this: If a party knowingly pays notes to which his name is forged, to save a relative and in a sense himself from disgrace, does he thereby render himself liable for the payment of all other forgeries which the guilty party may commit, where those who deal with the forger have no knowledge of the fact that any forged notes have been paid, and have not been harmed in any way by such payment ? If the question be answered in the affirmative, then no one would knowingly pay a piece of paper to which his name was forged, because to do so would place the
While tbe jury would not have been warranted in finding ratification, waiver, or estoppel on tbe evidence bad the notes been received, we think they were competent on another issue in tbe case. Tbe plaintiff contended and still contends that tbe indorsement on tbe note in suit was genuine, and offered tbe evidence of two bandwriting experts to support bis claim,, as well as bis own and that of Henry G. Goll. We think, in tbe absence of any showing to the contrary, tbe presumption is that tbe four notes referred to were paid by J. W. Skinner if they were forgeries; else bow did they come into bis possession ? Where one induces another to indorse bis note and be pays it at maturity, he may of course turn tbe paid note-over to bis indorser so that tbe latter may see that tbe note bas been taken care of. Where, however, one forges an in-dorsement, but pays tbe debt, for obvious reasons be will not
3. The appellant insists that the court erred in charging the jury that the burden of proof was on the plaintiff to show the genuineness of the signature by a preponderance of the evidence, and that the court should have charged as requested that the burden was on the estate to show by clear and satisfactory evidence that the signature was a forgery.
It has been held that, where one of the facts essential to a recovery in a civil action also constitutes a crime, the existence of such fact must be proved by clear and satisfactory evidence. Poertner v. Poertner, 66 Wis. 644, 29 N. W. 386; Trzebietowski v. Jereski, 159 Wis. 190, 149 N. W. 743. The question is: Does this rule apply to the instant case ? At common law it was incumbent on a party suing on a note to establish the genuineness of the signature' Under sec. 4192, Stats.,
We find no prejudicial error in the record.
By the Court. — Judgment affirmed.
Dissenting Opinion
I am unable to concur in the view expressed by the court that the signatures of decedent on the-several notes therein referred to as found in decedent’s possession and which had been probably paid by him, and were-