Winchell v. Crider

29 Ohio St. 480 | Ohio | 1876

McIlvaine, J.

This case has been considered in connection with DeCamp v. Hamma and Ross v. Doland, heretofore reported in this volume.

According to the principles announced in DeCamp’s case, propositions number 1 and 2, as requested by the defendant, stated the true rule of the law, and should therefore-have been given in charge to the jury, if the testimony in the case even tended to show that the defendant was free from negligence in the execution of the note. These requests fairly assumed the true test of the defendant’s non-liability, to wit, that he was without negligence in the premises.. We have looked into the testimony for the purpose of seeing whether the defendant could have been prejudiced by these refusals, but instead of finding evidence-tending to relieve the defendant from suspicion of negligence, we find indubitable proofs of gross negligence on his part. There was some testimony tending to show that the name of the defendant to the note was not his genuine signature, but that fact is not an element contained in the propositions requested and refused. These requests assume-that the signature was genuine, but obtained by fraud and-without negligence on the defendant’s part. And the genuineness of the signature being granted, the case made on. the proof was that the defendant relied solely on the representations of Ingalls as to the character of the paper. His^own testimony was : “ I did not read the papers at the time I signed them; I can read. No objection was made to my reading the papers at or before the time I signed them.” When all the testimony was in, if it had been demurred to on the ground that proper care and caution had not been exercised by the defendant in the premises, the demurrer should have been sustained by the court. Upon this point there was no issue of fact for the jury to determine. The admitted conduct of the defendant presented a mere question of law. And the law, upon the admitted fact, is that the defendant was guilty of negligence, and thei’efore there was no error to his prejudice in refusing to give these instructions to the jury.

The 3d request was properly refused, as in it the element of care on the part of defendant was omitted.

The 17th proposition in the charge as given, when considered in the case as it was made in the proof, was not objectionable. It is true the rule, as given to the jury for their guidance, contained no ■ qualification in favor of the defendant, if the jury had found him free from fault or negligence in the transaction ; but, as shown above, such qualification, had it been made, would have been a mere abstraction.

Did the court of common pleas err in striking from the allegations in the defendant’s answer, to wit, “ the said note is false, fraudulent, and forged,” the words “ false and fraudulent?” We think not. .Theallegation that the note was forged remained in the answer; and if the words stricken out were meant to describe the note as other than “ forged,” they certainly did not give it any quality or character which made it invalid in the hands of an innocent indorsee before maturity and for value. But, again, whatever the pleader may have meant by the words “false and'fraudulent,” the scope of the issues which remained, to wit, that the note was forged, and that the defendant “ did not make, sign, or deliver ” it, was ample for the admission ■of all the testimony offered in his defense.

Judgment of the district court reversed, and the judgment of the common pleas affirmed.