83 Mo. 693 | Mo. | 1884
Suit on a negotiable note alleged to have been made by defendant to tbe order of S. D. Cox and by bim endorsed to plaintiff. Answer non est factwn. Tbe defendant signed and swore to bis answer. Plaintiff introduced tbe payee and endorser, Cox, as a witness wbo testified to tbe making and delivery of tbe note to bim. Tben read tbe note in evidence, and offered other evidence tending to show admissions of tbe defendant.
Defendant as a witness in bis own behalf testified tbat be did not sign tbe note. Defendant tben introduced one Napton as a witness wbo stated tbat he was engaged in an occupation requiring more or less acquaintance witb and examination of tbe bandwriting of different persons, but bad never seen tbe defendant write and was not acquainted witb bis bandwriting. Defendant tben offered to exhibit to tbe witness tbe answer of defendant to which was attached tbe sworn signature of tbe defendant, to have tbe witness compare tbe signature to tbe affidavit and answer, witb tbe signature to the note in controversy, and state as an expert whether tbe two signatures were made by tbe same person. Tbe witness stated tbat they were not made by tbe same person, and tbat tbe note was not signed by tbe defendant. To this tbe plaintiff objected. Tbe defendant tben offered to submit tbe answer of tbe defendant bearing bis sworn signature, and tbe note sued on to tbe jury tbat they might compare tbe signatures, with a view of forming an opinion of tbe genuineness of tbe signature to tbe note. This was permitted, against tbe objections of tbe plaintiff. There was a verdict and judgment for tbe defendant and tbe case is here for review.
I. Tbe only questions for consideration are: 1st. Did tbe lower court err in permitting the witnesses to examine tbe genuine signature of tbe defendant to bis affidavit, and compare it witb tbe signature to tbe note % 2nd. Did tbe court err in submitting tbe genuine signature to tbe affidavit, and tbe one appended to tbe note, to tbe jury for their examination and comparison \
In Moore v. United States, 1 Otto 270, it was said: “The only question of importance is whether the signature to the document * * * purporting to be executed by the claimant, was properly proved. The court compared it with his signature to another paper in evidence for other purposes in the cause, respecting which there seems to have been no question; and from that comparison, adjudged and found that the signature was his. Had the court a right to do this % The general rule of the common law, disallowing a comparison of handwriting as proof of signature, has exceptions equally as well settled as the rule itself. One of these exceptions is, that if a paper admitted to be in the handwriting of the party, or to have been subscribed by him, is in evidence for some other purpose in the cause, the signature or paper in question may be compared with it by the jury.” To a similar effect is Brobston v. Cahill, 64 Ill. 356; Baker v. Haines, 6 Wharton 283.
.The question discussed in The State v. Clinton, 67 Mo. 380, is somewhat different. There the inquiry was,
II. But the trial court, in this case, goes further. It permits an expert to be called, who never saw the writer of the names write, and express his opinion as to the genuineness of the note sued on by comparing it with the. signature of the defendant in his plea of non est factum. It seems that the authorities will not sustain this position. It is said the temptation to manufacture evidence is too great. “The knowledge must not have been acquired or communicated with a view to the specific occasion on which the proof is offered.” Best on Ev., sec. 236. In Stranger v. Searle, 1 Esp. 14, Lord Kenyon rejected the evidence of a witness who stated that he had seen the defendant write his name several times before the trial, who wrote it to show the witness his true manner of writing, so that witness might be able to distinguish it from his alleged signature on the acceptance. The reason given was that the defendant might have disguised his writing intentionally. This seems to be the ground of rejecting such evidence and the full extent of the rule is as above stated by this court in 67 Mo. 380, and which, also, seems to be in harmony with all the better authorities. 1 Whar. on Ev., sec. 707 ; 91 U. S. supra; King v. Donahue, 110 Mass. 155; Miles v. Loomis, 75 N. Y. 288; Brobston v.