144 A. 912 | Pa. | 1928
Argued December 4, 1928. This is a scire facias sur mortgage, in which Albert H. Snyder and S. Bertha Snyder, the mortgagors, interposed the defense that the mortgage was a forgery. It bears date of September 18, 1913, and purports to secure the payment of $4,500, of which $2,500 was payable to John M. Steel, $1,400 to Elizabeth M. Maxwell and $600 to Sarah A. Rumbaugh. On March 6, 1917, the executors of Elizabeth M. Maxwell, she having died meantime, *125 endorsed on the record, a receipt in full satisfaction of her share of the mortgage debt. Pending this suit, the interest of Sarah A. Rumbaugh was assigned to one of defendants' attorneys. The other mortgagee, John M. Steel, also died pending the suit and his executors were substituted and in fact were the only plaintiffs at the trial.
At the time of the purported execution of the mortgage, William F. Wegley was an attorney and notary public at Greensburg. The mortgage purports to have been signed and acknowledged before him. A large number of lay witnesses, familiar with the handwriting of the defendants expressed very positive opinions that the signatures to the mortgage were not genuine. Two of these gained their knowledge of the handwriting in question some years after the date of the mortgage. This the trial judge properly held did not warrant the rejection of their evidence. See Wilson v. Van Leer,
In addition, George W. Wood, a handwriting expert of large experience, studied the signatures in question alone and in connection with others shown to be genuine and expressed the opinion that the former were forgeries. A motion was made to strike out his evidence for the alleged reason that his opinion was based in part on signatures not in evidence. While his testimony as to that was a little vague, taken as a whole it was not such as to justify granting the motion. As to this the witness says, inter alia: "Q. The other signatures you had assisted you in arriving at your opinion? [those not in evidence]. A. They did not. I would say in a *126
negative way this, in the particulars that they did not contradict the opinion formed from an examination of these signatures themselves. Q. But in arriving at your opinion, before you had your opinion, you decided you should have other signatures and you did use signatures other than defendant's exhibit No. 1 to help you arrive at your opinion? A. I would not say to help me because these signatures in question, studied intelligently by any experts, present the earmarks of forgery." The mere fact that the unidentified signatures did not disprove the conclusion formed from the study of such as were proven certainly did not render the opinion incompetent. Aside from this, the motion was to strike out the entire testimony of the expert, covering eighteen printed pages, the major portion of which consisted in a discussion of the disputed signatures by themselves and the intrinsic evidence of forgery they disclose and other explanations clearly competent, aside from his opinion. See Com. v. Swartz,
We cannot consider the complaint that the court erred in excluding the question asked the expert as to the compensation he was to receive for his testimony, because it is not mentioned or suggested in the statement of questions involved. See New York Pa. Co. v. N.Y. Cent. R. R.,
No hard and fast rule can be given as to the weight of expert testimony. This depends on the manner of the witness, the cogency of his reasons, to what extent he is corroborated, and other circumstances. See Henry's Est.,
The complaint that the trial judge told the jury that settlement of Sarah A. Rumbaugh's part of the mortgage had nothing to do with the case, is based on a misapprehension of what the judge said, which was that counsel so argued; but he said, in effect, that while a party had the right to buy his peace, the weight of such *127 settlement was a matter for the jury to consider, and repeated it in a later part of the charge.
Wegley who had been Steel's attorney, was the only witness to the mortgage, and the one before whom it purports to have been acknowledged, and he knew whether it was genuine or spurious. If the mortgage was honest, Wegley knew it and, in answer to the charge of forgery, was the natural witness for plaintiffs to call. Therefore, the trial judges' comment that from the failure to do so the jury might infer that, if called, his testimony would be unfavorable, was not error. If forgery was committed, the circumstances pointed to Wegley as the forger, hence the defendants could not be expected to call him or to ask him to incriminate himself. In Collins et al. v. Leafey, 23 W. N.C. 264, 268, Mr. Justice MITCHELL, speaking for the court, says: "The seventh assignment involves a point of some importance in practice, namely, how far a judge may comment on the absence of evidence. The reasons why certain evidence, which might naturally be looked for, may not be produced, are so many and so various, and sometimes so difficult of explanation, that obviously this is a kind of argument that requires careful handling, especially when used from the bench. But it is a legitimate instrument in the investigation of truth, and a liberal discretion in its use must be allowed to the trial judge who is in a far better position to determine the occasion for it than this court possibly can be." And in Ginder v. Bachman,
The defendants could write, so the suggestion that they may have authorized the signing of the mortgage is not probable or supported by any evidence. If the mortgage was a forgery, its purported acknowledgment was false and fraudulent and gave the instrument no legal validity. See Michener and Wife v. Cavender,
Plaintiff's third point and the answer thereto were: "The plaintiffs' claim is based on an instrument under seal. Want of consideration is not a valid defense to a suit on a sealed instrument. Answer: As an abstract proposition of law that is correct, but I do not think it has any bearing here." This was accurate. The defense was forgery and as to that the seal had no bearing. No evidence was offered tending to show that the signatures *129 to the mortgage were genuine or that the defendants authorized or ratified them, while there was ample testimony that the signatures were spurious; hence, binding instructions for plaintiff could not have been given. The question of a new trial was for the discretion of the trial court.
In view of the fact that in 1917 the executors of Elizabeth M. Maxwell had placed upon the mortgage record a satisfaction of her interest in the mortgage, the defendants were severally called and over objection and exception permitted to testify that they never knew Mrs. Maxwell or owed her any money or gave anything to the executors in payment thereof, and had nothing to do with the satisfaction. We have reluctantly concluded that this was error. John M. Steel died in 1925 and his estate was a party of record, yet the adverse parties were permitted to testify to relevant matters occurring in his life time. Mrs. Maxwell's estate was not a party of record nor interested therein; hence, the fact that the matter testified to occurred after her death, is not to the point. Neither is the fact that the transaction referred to the acts of living persons, viz., her executors. Had such executors been called as witnesses for plaintiffs and testified to a transaction with defendants it would have qualified the latter under the Act of June 11, 1891, P. L. 287, as to that transaction, but they had not and the act only applies where the living party has been called as a witness. See Montelius v. Montelius,
The first and second assignments of error, embracing the question just discussed, are sustained and thereupon the judgment is reversed and a venire facias de novo awarded.
