69 W. Va. 765 | W. Va. | 1911
The action is prosecuted by the administrator of an estate against one who is alleged to have signed as surety a note made to the decedent, on which recovery is sought. Defense at the trial was based on a duly verified plea denying the alleged signature. A jury found the issue against defendant.
Various assignments of error are presented against the judgment. We shall now consider the most material of these assignments.
The objection to the introduction of the note as evidence was properly overruled. Defendant based this objection on the fact
The admission of certain papers which purported to bear signatures of defendant, for the purpose of a comparison with the disputed signature on the note, was excepted to because the introduction of these papers was not accompanied by proof of the court that they were genuine. The statute permitting the use of writings for comparison in proving a disputed signature gives the trial judge discretion which he must not abuse. Any writing may be used for this purpose if proved to the satisfaction of the judge to be genuine. Code Supp., 1909, sec. 2943al. In this instance, the court allowed the papers to go to the jury without any inquiry at the time they were offered as to their genuineness. To do so was by no means proper. However, later in the trial, defendant admitted the genuineness of his signature to each of the papers. So the omission was supplied. True, the order of procedure was not what it should have been in the regular and cautious presentation of evidence; but, since defendant admitted that his signatures placed before the jury for comparison were genuine, he could not be prejudiced by their use. Then, it is argued that it was error to allow this admission of genuineness to be drawn from defendant on cross-examination. We do not think so. The cross-examination in this particular properly related to his evidence in chief to the
The widow of the decedent was introduced as a witness for plaintiff, the adminisrator. She testiñed as to personal transactions and communications between defendant and the decedent at the time of the making of the note. Her testimony along this line tends to establish that defendant placed his signature to the note. The introduction of her testimony as to these personal transactions and communications raised the prohibition against defendant’s testifying as to the same personal transactions and communications. Code, 1906, ch. 130, sec. 23. The widow is a distributee, for whose benefit the suit by the administrator is pending. She is next of kin to the decedent. Seabright v. Seabright, 28 W. Va. 412. When she testifies against defendant as to his personal transactions and communieations with the decedent, the door is then opened, by the terms of the statute, for defendant to speak of the same personal transactions and communications. Relevant testimony by defendant which would have rebutted the testimony of the widow in this regard, and the inferences to be drawn- therefrom, was excluded at the trial, over defendant’s objection. He had the right to give his version of the transactions and communications about which the widow testified. This right, the record shows clearly, was denied him. The fact that he was permitted to testify that he did not agree with the decedent to sign the note, and that he did not sign it, is not sufficient to excuse the closing of his mouth as to other doings and words with the decedent, about which the widow testified. Defendant had the right to deny or to explain the acts .and communications mentioned by her. He should have been permitted to give his version of the same and to narrate other acts and words connected therewith. He was improperly cut off from doing so.
Then again, Long, who was introduced as a witness by defendant, was not permitted to state the conversation which took place between defendant and the decedent in regard to the note and security therefor. The widow had testified as to this same conversation. Her testimony in relation ther'eto tends to establish the fact that defendant signed the note as alleged, and that i't was not to be secured solely by deed of trust as 'defendant claims. Long was ¡iresent at the time of which she speaks. On
Plainly was it error not to allow defendant by his own testimony and by that of his proposed witness to refute the testimony of the widow relative to what was said and done between defendant and the decedent at the time the note was made. We cannot say, as we are asked to do, that a refutation of this ■testimony would not have changed the result. The evidence submitted to the jury is conflicting. Defendant was entitled to have all material and competent evidence heard. It may be that the result would have been the same if the excluded testimony had been admitted. It is for a jury alone to say that it would. We cannot take the conflicting evidence introduced and the evidence that should have been admitted and now pass on the whole as jurors. That course would be virtually a denial of trial by jury. We reverse the judgment, set aside the verdict, and award a new trial.
'Reversed and Remanded.