189 Ky. 668 | Ky. Ct. App. | 1920
Opinion of the Court by
Affirming.
First. It is seriously contended that the verdict is flagrantly against the evidence, but an examination of it leads us to a different conclusion. The note sued on, though dated August 14, 1915, was, according to the testimony of the bank’s cashier, actually executed on September 21st, thereafter, and at the same time there was another note signed by defendant for $2,000.00 payable to the Farmers National Bank of Clay, Kentucky, and which had been sent by the latter bank to plaintiff for the purpose of having it executed. Each of those notes was attested by the cashier, who swore that he saw the defendant sign her name to them. The president of plaintiff bank testified that the cashier left the office on the day mentioned with the note in suit not signed by defendant and shortly thereafter returned with it signed by her. Defendant admits signing the Clay bank note, but says it was the only one she did sign on that occasion. A number of cashiers of different banks testified as experts, some of whom were familiar with defendant’s signature, and they all gave it as their opinion that the signature in question was genuine. Other notes executed
Second. It is earnestly complained that the court committed error in not permitting plaintiff to answer this question, “How many notes did plaintiff bank have m its possession as shown by its books bearing date August 14, 1915, purporting to be signed by defendant which were forgeries?” The court sustained the objection to the question and an avowal was made that the witness would say, “at least six.” The general rule is that, where the question is whether a certain person forged a particular instrument, proof is inadmissible that on another occasion he forged another paper, wholly disconnected with the one in controversy. First National Bank v. Wisdom’s Executors, 111 Ky. 135, and cases referred to therein. But, it is contended in support of the alleged error now under consideration that under the
Further complaint is made because the court sustained an objection to the introduction of the petition in a former suit filed by defendant against plaintiff, in which she sought the surrender find cancellation of cer
It is next insisted that the court erred in allowing the witness, Powell, who was .president of plaintiff bank, to testify after the introduction of other evidence in chief contrary, as claimed, to subsection 3 of section
Under this head it is lastly insisted that it was error for plaintiff’s witnesses to refer to its books and to what they contained without producing the books themselves. A sufficient answer to this contention is, that the only reference made by the witnesses to the books was that elicited by counsel for defendant in their cross-examination, and it related to the date when the entry of the note in litigation was made on the books, and perhaps to the dates of entries of other notes, which were of even less materiality on the issue of non esi factum, though such testimony might have been highly material if the defense of nudum pactum had been relied on.' Under such circumstances defendant can not complain of this testimony, since her counsel invited the references to the books by his cross-examination. Besides, there was no objection made to the statements at the time, nor was any motion entered to enforce the production of.the books. For these reasons this alleged error can not be relied on, even if it be assumed that the entries on the books were material evidence, which, however, is not shown to be true.
Third. Another ground, strongly relied on, is newly discovered evidence, which consists in the fact that an
Tbe fourth ground argued for a reversal is, improper argument of plaintiff’s counsel before the jury. The objectionable remarks, as shown in tbe bill of exceptions, consisted in these statements of counsel: “Tbe cancellation marks on tbe revenue stamps of tbe Clay bank note showing tbe date July 16, 1915, were evidently made by mistake in using a rubber stamp with the wrong date thereon. S. D. Powell and J. D. Morebead swear to you it was signed by Mrs. Eakestraw September 21, 1915, and give the details. This is no question of mistake on their part. Your verdict cannot be for defendant with
Other criticisms of the trial, including one directed to .the instructions given to the jury, are urged as material errors; but we have thoroughly considered them and are unable to agree with counsel. Upon the whole case we' have failed to discover any error prejudicial to the substantial rights of the defendant and the judgment is therefore affirmed.