Deep River National Bank's Appeal From Commissioners ( 1900 )

Section 1094 of the General Statutes provides that "in actions against the representatives of deceased persons, no acknowledgment or promise shall be sufficient evidence of a new or continuing contract to take the case out of the statute of limitations, unless the same be contained in some writing made or signed by the party to be charged thereby."

In the absence of any provision requiring such acknowledgement to have been written or subscribed by the hand of the deceased person, the meaning of the word "writing," as used in this statute, is not to be limited to words traced with a pen or pencil; nor the words "writing made . . . by the party to be charged thereby," to writings made by the hand of such person; nor the words "writing . . . signed" by such person, to writings subscribed by the deceased with his own hand.

Proof that the letters containing the alleged acknowledgements were dictated by the deceased to a stenographer, and were by the latter, at the direction of the deceased, typewritten and signed with the deceased's name by means of a rubber stamp, was proof (1) that they were writings (Henshaw v.Foster, 9 Pick. 312, 318), since "typewriting is a substitute for and the equivalent of writing;" (2) that they were made by the deceased, since he directed them to be made, and adopted them after they were made, by directing them to be stamped with his name; and (3) that they were signed by him, since in the absence of any express or implied requirement of law that one shall subscribe a writing with his own hand, he may properly sign it by means of such a stamp used by himself or by another at his direction. Schneider v. Norris, 2 M. S. 286; Streff v. Colteaux, 64 Ill. App. 179; NationalAccident Society v. Spiro, 47 U.S. App. 293; Hamilton v.State, 103 Ind. 96; Chapman v. Limerick, 56 Me. 390; Dreutzer v. Smith, 56 Wis. 292.

The letters contain an unequivocable acknowledgment of an existing indebtedness of Davis to the bank as indorser with Clark, and their language is therefore sufficient to remove the bar of the statute; Blakeman v. Fonda, 41 Conn. 561;Norton v. Shepard, 48 id. 141; and as the two notes in question were the only ones then held by the bank upon which Davis and Clark were indorsers, the court was justified in finding from the language of the letters that the indorsements they referred to were those of Clark and Davis upon both of said notes. Cook v. Martin, 29 Conn. 63.

Although these letters were written under letter-heads of the Cutaway Harrow Co., and concerning its business, and were signed "Clinton B. Davis, Treasurer," they were nevertheless personal letters of Davis, if proved to have been written and signed by his direction, in so far as they spoke in his name regarding his personal affairs.

There was evidence to show that Davis, who was the treasurer of the Cutaway Harrow Co. and its financial manager, did the principal business with the banks, and dictated to a stenographer letters written to the banks; that the stenographer, having transcribed such dictated letters upon a typewriter, was authorized by Davis to affix to them the latter's signature with the rubber stamp which Davis had procured and which he used in the office in signing both business and personal letters, and with which the letters in question were signed. The contents of the letters themselves indicated that they were dictated or written by one familiar with the business of the company and with Mr. Davis' affairs. In the absence of any evidence to the contrary, the proof thus presented was sufficient to sustain the finding that the letters were dictated by the deceased to the stenographer, and that the latter transcribed them and affixed the signature by direction of Davis. After such proof the letters were properly received in evidence. To render them admissible it was not necessary that it should be proved beyond a reasonable doubt that they were the letters of Davis, but only to introduce evidence which, when uncontradicted, would satisfy all reasonable minds of that fact. Ingram v. Reiman, 81 Ill. App. 123.

There is no error.

In this opinion the other judges concurred.