Williams v. Drexel

| Md. | Jan 24, 1860

Eccleston, J.,

delivered the opinion of this court.

In this action of assumpsit, instituted by the appellee against the appellant, the declaration contains six common money counts, and a seventh upon a bill of exchange, the latter alleging that Thomas W. Williams, by his bill of exchange, then over due, dated the 4th day of April, 1857, and directed to the defendant, required the defendant to pay to the order of him,, the said Thomas W. Williams, $402.53, five days after-sight,'and endorsed the said bill of exchange to the plaintiff, and that the said defendant on sight of said bill of exchange accepted the same on the 7th day of April 1857, but did not pay the same.

The defendant appeared and plead Pthat she never was indebted to the plaintiff as alleged.”

A verdict being given in favor of the plaintiff and judgment rendered thereon, the defendant appealed.

The following agreement, signed by counsel for the respective parties has been filed in this court.

“It is admitted for the purpose of amending the record in this case, that the bill of exchange mentioned in the record, was endorsed in blank, at the time the witness testified concerning it, and was so endorsed at the time the witness presented it to the defendant, as testified to by him; and that the words, ‘Pay to Francis Drexel or order,’ were written over the endorsement in blank, after the witness had testified, and just before the verdict.

“It is also agreed that the appellee may exhibit to the court, the original bill of exchange, with the endorsements thereon, hereto annexed, and that the court may make such alterations in the record from an inspection of the said original paper, as to the court may seem proper, but the appellant does not admit that there is any error in the record.”

From an inspection of the original bill the court think, that, in virtue of the above agreement, it is proper so to amend the record as that the name of the drawer, of the payee, and that of the indorser, (Williams,) shall all be written in the same manner, appearing to be the name of the same person, and all apparently in the same handwriting. At the trial the plaintiff offered in evidence to the jury the bill of exchange, with the acceptance and endorsement, and also the protest.

As a witness, Mr. Marshall, testified that the bill of exchange in question was sent to him to collect, as attorney for Mr. Drexel; that witness called upon the defendant at her store, and informed her that he had a claim against her for Mr. Drexel, of Philadelphia, and handed her the bill of exchange; that she examined it, and told witness she had either had ainterview or some correspondence with Mr. Drexel on the subject before she was called upon by witness; that she expected to get some one in Philadelphia to pay the claim to Mr. Drexel, and would write to Philadelphia on the subject. Witness promised to give the defendant further time to write to Philadelphia before bringing suit, and she said she would let witness know the result. She never said anything afterwards to him, and he brought the suit. At the time of the above conversation, the defendant had the bill of exchange and examined it, and told witness that it was her acceptance. She recognized it when it was presented to her. Witness asked her if she could pay or secure it then, and she said no, as she was then selling out to close business, but that she would endeavor to get. it paid'by some one in Philadelphia. The bill of exchange was sent to witness after it had been protested.

The defendant then asked the court to instruct the jury, “to find a verdict for the defendant, because (here was no evidence of the endorsement of the bill by (he payee,” which instruction was refused by the court, and the defendant excepted.

The defendant’s counsel concedes that the acceptance, when proved, is proof sufficient as to the drawer’s signature to a bill of exchange; but he insists that the acceptance is no proof or admission of the endorsement of the payee, whether the bill is drawn payable to the drawer’s own order or to that of another person. And applying this doctrine to the evidence in the present case, the counsel for the defendant contends that his prayer should have been granted.

The plaintiff’s theory is, that although the acceptance,per sc, is not an admission or proof of the endorsement, yet, inasmuch as it admits the signature of the drawer, the bill is then before the jury with a signature admitted to be genuine, and if—as is here insisted upon—the name of the endorser, as payee, appears to be the same as that of the drawer, the jury have the right to compare the one with the other.

We think that, where a paper, which is admitted or clearly proved to be genuine, is already in a cause, and another paper, pertinent to the issue, alleged to be in the same handwriting, is offered in evidence, the jury may compare the latier with the former. 1 Greenl. on Ev., sec. 578, (5th Ed.,) and the cases cited in note 3.

(Decided January 24th, 1860.)

A genuine and a disputed signature being upon the same paper, cannot render a comparison, by the jury, less proper than where there are two sepaiato papers.

The defendant’s counsel contends that such a comparison cannot be made between the signatures on this bill of exchange, because the bill was not in evidence until some proof of the endorsement was given, other than a mere comparison of the signatures, and there being no such oilier proof, the jury had no right to make the comparison. In this view of the subject, the counsel thinks his prayer was improperly refused.

The refusal, however, was proper, if there was any evidence legally tending to prove the endorsement of the bill by the payee.

The bill of exceptions states that the plaintiff “offered in evidence to the jury the following papers writing, purporting to be a bill of exchange, acceptance and protest,” which are then set forth, no objection to their admissibility appearing to have been made.

The record, as amended, shows the bill of exchange to have the name of the drawer, the name of the payee, and that of the payee as endorser, all written in the same manner, appearing to be the name of the same person, and all apparently in the same handwriting. The acceptance is fully proved, which admits the signature of the drawer. It is also shown, that whilst the endorsement of the bill was in blank, the defendant acknowledged the acceptance to be hers/ When, in addition to these circumstances, we have before us the whole conversation between the defendant and Mr. Marshall, as detailed by him, we are not prepared to say, there was no evidence to prove the endorsement of the bill by the payee. And, consequently, the judgment will be affirmed.

Judgment affirmed.