168 A. 714 | Vt. | 1933
The plaintiff seeks to recover on a negotiable promissory note, which was transferred to him by indorsement of the payee named therein after maturity. The case was tried and submitted to the jury on the single issue of whether the note was genuine or a forgery. The verdict and judgment were for the defendant, and the plaintiff excepted. Three questions are presented for review.
During the trial it developed that the affidavit of defense, which on its face bore the signature of the defendant, was in fact signed with the authority and direction of the defendant by one of her attorneys of record, and was sworn to by her before the same attorney, who executed the jurat as a notary public. The plaintiff moved for judgment on the ground that no affidavit of defense had been filed. The motion was overruled, and the plaintiff excepted. It is unnecessary to pass upon the validity of the unusual procedure adopted; but we do not approve it, either directly or indirectly. The complaint is in the common counts. The plaintiff's specifications state: "In the above entitled cause the plaintiff hereby gives notice that at the trial thereof he will seek to recover upon the following described promissory note," and a copy of the note in suit follows. The plaintiff contends that his complaint and specifications constitute a "collection suit" under county court rule 9, par. 1, which, in the absence of a proper and sufficient affidavit of defense, entitled him to judgment, as in case of default. County court rule 9, par. 2; Alexander v. Chevalier,
The court charged the jury that the burden was upon the plaintiff to prove that the note was genuine. The plaintiff excepted to the failure of the court to charge that the burden was upon the defendant to prove that the note was a forgery.
The so-called affidavit of defense filed by the defendant set forth that she never gave the note to the payee named therein, that the note was not signed by her, nor signed by her authorization, and that the same was a forgery. Regardless of its legal effect as an affidavit of defense for the reasons already noticed, it was sufficient to give notice of denial of execution under county court rule 17. The National Union Bank of Swanton v.Marsh,
The plaintiff excepted to the overruling of its motion to set aside the verdict on the grounds that there was no evidence to support it, and that there was no evidence offered by the defendant to support the defense that the signature to the note is a forgery. The latter ground, which is the one apparently relied upon, is based upon the plaintiff's contention that the burden was upon the defendant to prove the forgery, and not upon him to prove the genuineness, of the note. We have already disposed of that contention.
The defendant testified that she never signed the note, and, as we interpret the record, there was no admission or concession to the contrary. There was a square conflict in the evidence, which presented a fact question for the jury. If as the plaintiff contends the case was submitted to the jury, with the acquiescence of the defendant, on the theory that the named payee obtained the defendant's signature for another purpose and wrongfully wrote the note above it, the note is no less a forgery, Grapes v. Rocque,
Judgment affirmed. *496