113 Ky. 61 | Ky. Ct. App. | 1902
Opinion op tiib court by
Reversing.
Appellee, Carrie Taylor, was a depositor of the Phoenix National Bank of Lexington, and had therein to her credit during the year 185)8 $1,055. This controversy- involves-the genuineness of'a check for $450 asserted by the bank to have been executed by appellee January 4, 1899, payable' to the Planters’ Bank, and signed “Carrie Taylor,” and which had been drawn on and paid1 by appellant. Appellee sued the bank for the sum of $450, claimed to be the-balance remaining to her credit, and which it had refused to pay on her demand. She repudiated the check to -the1 Planters’ Bank, claiming that it was not her act. It was shown that appellee was a lewd woman, and had become apparently infatuated with one Burcliitt, who was a soldier in the United States army, encamped at Lexington for a period during the year 1898. Upon the transfer of the command to which he belonged to the South in the winter of 1898, she followed him there. He was for a while located at Americas, Ga., where she joined him, and whele<their relations were of that intimate nature that they passetKa,s
The court gave the following instruction: “The jury should find for the plaintiff, unless they believe from the .evidence that the check for the sum of four hundred and fifty dollars, dated January 4, 1899, drawn in favor of the Planters’ Bank on the Phoenix^ National Bank, to which «liock Hie name of Carrie Taylor was signed, was in fact signed by said Carrie Taylor; and if the jury believe1 from the evidence that said Carrie Taylor did sign her iiame to said check, tlie jury should find for the defendant.” Appellant moved tlie court to give the jury the following instructions, which was overruled: (1) If the jury believe
We are of opinion that the instruction given by the court was too limited, in view of the plea and circumstances ,shown in this case. The plea was a justified payment by the bank. Tim circumstance's and evidence on behalf of the bank were that the depositor, Cárrie Taylor, delivered to John G. Burchitt a check with her name signed to it. It as true it was also testified by Burchitt that he was: acquainted with her- handwriting, aind that the signature was hers. Him having denied her signature, the jury may have believed, and under all the facts and circumstances in this case might have been warranted in believing, that, although she did not sign, her name to the check, she -authorized another to sign her name to it. Furthermore, if she did not 'sign the check, or if she did not authorize it signed, yet, if she accepted the proceeds which had been deposited in the Planters’ Bank to her credit, and drew her check against the same, she thereby ratified all that had preceded that act; and this would have been a justification of the
As the case must be returned for a new trial, it becomes necessary to pass upon certain objections to the evidence. It appears that there were but two checks drawn against (lie deposit of $1,055. One was the check in controversy; the other was a check for the balance ot $005, presented by appellee, and paid by the bank. She admits that she signed her name to this last check. Before this trial appellee procured a subpoena dues tecum, against tin» officers of the bank to produce this last named check, ostensibly for the purpose of comparison of the handwriting in I Ik; signatures of the two checks. In order to obtain the subpoena, she lik'd her affidavit, setting forth in legal phraseology the execution of the last-named check, and certain occurrences which she alleged transpired on the occasion when she andi her counsel had visited the bank and examined’ it. This, was all shown evidently for the purpose of informing the court that the check was in fact in the custody of the officers of the defendant bank. In response, to the subpoena, the president of the bank filed his' affidavit, in which he explained the absence of this cheek- —that it had been lost or misplaced without fault of the bank, or that it had been delivered to appellee; in other words, it was an explanation to the court why the bank was unable to comply with this, order to produce the paper as directed. Over the objection of appellant both of these affidavits were permitted to-be read to the jury. A Ye are unable to perceive wherein they were relevant to the issue submitted. The fact that she had signed the last check and had called for its production was properly admitted to the jury. Then it was also permissible for the bank to explain to the jury by the tes
Appellee claims that prior'to January 4, 1899, she could not read and could not write, and could not sign her name. This she testified on the trial. It was, of course, a relevant fact to be proved by her, or by any other having knowledge of it. Before the trial she filed in the record six chattel mortgages: One dated July 13, 1897, to the Rhodes-Bur-ford Furniture Company, for $54, putting in pledge certain articles of furniture. It appears to bo signed, “Carrie her X Taylor,” attested by W. R. Baker and A. Price. Another similar mortgage, executed July 13, 1897, to secure $153, putting in pledge certain articles of furniture to A. F. her Wheeler & Co., of Lexington. This was signed “Carrie X Taylor.” Witnesses, R. F. Thompson and J. II. Harris. Another, dated July 29, 1899, to the Rhodes-Burford Furniture Company, to secure $43.15 upon certain articles of furniture, which was signed “Carrie Taylor.” Another, dated-August 1, 1.898, to the Rhodes-Burford Furniture Company, to secure $G, pledging certain articles of furniture.
A somewhat unusual question is presented as to appellee’s claim of right to use other mortgages signed b3r her mark, her name being written by another, for purposes of comparison with the disputed handwriting under this section of the Code. If it should be said that these mortgages signed in this manner were used as evidence of the fact that appellee could not write her name, we are of opinion that they were not relevant for that purpose, because they do not tend to prove that fact. They prove merely that she did not sign her name to those particular papers, not that she could not write it. The fact that she could not write1 her name is, of course, a relevant one in this ease, as we have said, and might be proved by relevant and competent evidence. One who can write his name may choose to sign by his mark, or may choose to have another sign his name for him. In either event the legal effect of his signature as to its binding him would be the same, except in certain known exceptions; as, for example, the case of a surety, whose name'was signed by another, and who did not make his mark. It is' for the jury to decide from ¡all the facts and testimony in evidence whether appellee could write. There was evidence for appellant, however, that appellee could write her name. In fact, she admits that she, at the time of the trial, could write her name, and at the time of the presenting of the last check upon the
It is to be noted that it is the contention of appellant and of its witnesses that appellee signed the name “Carrie Taylor” to the check in controversy. One of the methods of proving the genuineness of a questioned signature is by comparing its handwriting with other and known and admitted handwritings of the disputant. In Strong’s Ex’rs v. Brewer, 17 Ala., 706, the question was whether an obligation was signed by Isaac Brewer by making his mark in the shape of a cross, his_ name being written at length by some other person. To prove the execution of this obligation, the plaintiff introduced his son as a witness, who testified to the handwriting of his mother, and also stated that he knewT the mark of his father, Isaac Brewer, and the mark attached to the foot of the instrument he believed to be! his father’s mark. The defendant objected to this mode of proving the instrument on the ground that a mark, differing from an ordinary signature, could not be proved in the manner proposed. But the objection was overruled by the court. Said the Alabama supreme court, by Chief Justice Dargan: “The general rule, vrhick admits of proof of the handwriting of a party, is founded on the reason that in every person’s manner of writing there is a peculiar prevailing character, which distinguishes it from the handwriting of every other person, and therefore that one who knows the handwriting of the party is competent to testify to it.” The court further said: “The degree of weight to be attached to it depends not only upon the character of the witness, but also upon the opportunity he has had of acquiring a knowledge of the party’s handwriting. It may be more difficult to ac
The judgment is reversed, and cause remanded for proceedings consistent herewith.