Roberts v. Morrison , 75 Iowa 321 ( 1888 )

Robinson, J.

1. Promisory notes: action on : misjoinder: no projudice. —I. The first question we are required to determine is the correctness of the ruling of the court on tim motion for leave to withdraw answer, and to strike. Counsel for appellant urge strenuously that the rulings permitted a misjoinder of causes of action, and that, notwithstanding the fact that the jury based their verdict on the notes, and not on the alleged fraud, yet the* latter was in issue, and the evidence given to establish it was of a nature to prejudice appellant. We do not find it necessary to consider this branch of the question. One of the theories upon which the case was tried was that appellant had, by his participation in .the alleged conspiracy, authorized his nephew to sign the notes in suit in his name, or in a name which it is shown he used in signing written instruments. The evidence, which might have been competent to sustain a claim based on fraud, also tended to show that the nephew had signed the notes as the agent of appellant. Under the issues presented by the so-called “reply,” this evidence was competent. Since the jury found, in effect, that appellant had made the notes in suit, the action of which appellant complains as erroneous must have been without prejudice.

2. Witnesses: impeachment: weight of evidence: instructions. II. John R. Morrison, a brother of defendant’s, gave testimony as to the alleged conspiracy, which was material as bearing upon the question of the authority oi the nephew to append the name of appellant to the notes. Six witnesses testified that John’s reputation for truth and veracity in the neighborhood where he lived was bad ; nine others testified that it was good. The court charged the jury, in regard to this, as follows: “There has been evidence introduced tending to show the reputation of the witness John Morrison for truth and veracity in the neighborhood in which he lives. If you believe from all the evidence introduced on the subject, that said witness’ reputation for truth and veracity in the neighborhood where he lives is bad, you will consider the fact as bearing upon his credibility as a witness; but you should not for that reason alone entirely disregard his testimony — especially in those particulars, if any, in which he is corroborated by other credible witnesses, or by facts and circumstances shown by the evidence in this case. If you find that his credibility is sustained by as many credible witnesses as discredit his credibility, he cannot properly be held or found to be impeached.” It is insisted by appellant that the last sentence of the paragraph quoted is erroneous. If the jury might have concluded from the charge as a whole that this sentence instructed them that the testimony of all credible witnesses was entitled to equal weight, then it was not only erroneous, but probably prejudicial. Facts are established, not by the greater number of witnesses, but by the greater weight or value of the evidence given. But in this case the jury were told that the court “has not attempted or intended to embody in any one instruction all of the law applicable to the case. You are to consider and construe together all of the instructions, and apply them as a whole to the evidence in the case.” In the paragraph of the charge immediately following that to which objection is made, the jury are told that “in' determining the issues in this case, you should take into consideration the whole of the evidence, and all of the facts and circumstances proved on the trial, giving to the several parts of the evidence such weight as you think they are entitled to; and, in determining the credibility and weight to be given to the testimony of the several witnesses, you should take into consideration their interest in the result of the suit; his or her conduct and demeanor while testifying; his or her apparent candor or bias, if any such appears ; his or her prejudice or feeling for or against either party, if any such appeal’s; the reasonableness or unreasonableness of the story told ; and all the evidence and circumstances tending to corroborate or contradict any or all of the witnesses; and from all these matters and things determine and give to the testimony of each and all of the witnesses such weight as you, in the exercise of your best judgment, believe the same fairly entitled to at your hands. You are not bound to fake the testimony of any witness as absolutely true ; and you should not do so if you are satisfied, from all the facts and circumstances proved on the trial, that such witness is mistaken in the matters testified to by him or her, or that from any other reason his or her testimony is untrue or unreliable.” Taking the charge as a whole, it is evident that the court did not instruct the jury that they must give equal weight to the testimony of all credible witnesses. The liability of a credible witness to be mistaken is recognized. The jury must have inferred from the portion of the charge in question that, if not less than six of the nine witnesses who testified that the reputation of John R. Morrison for truth and veracity were equally as credible as the six witnesses who testified to the contrary, then his credibility had not been impeached; and this, we think, was correct. We do not approve the language used by the court; but hold that, as modified and explained by other portions of the charge, it could not have been prejudicial. State v. Pierce, 65 Iowa, 89 ; Dixon v. Stewart, 33 Iowa, 128.

3. Promissory notes: execution: evidence. III. The sufficiency of the evidence to sustain the verdict of the jury has been discussed by counsel at considerable length. It is not necessary for us to review the arguments made. Appellant claims that his name is William T. Morrison; but signatures admitted to have been made by him, where the signature was like those attached to the notes in suit, i. e., “Wm. Morrison,” or “William Morrison,” were admitted in evidence. He received a considerable number of the cattle purchased. Evidence was given which tended to show that a conspiracy was formed as alleged ; that appellant was fully advised in regard to it, and participated in it; and that he knew that the notes were to be signed by the nephew, and delivered to plaintiff as his own. The name of the nephew was William Alexander Leroy-Morrison, hence the signatures appended to the notes more nearly represented the true name of appellant than of the nephew. Evidence was submitted from which the jury might have found that appellant himself signed the notes, or that they were signed by the nephew with his knowledge and assent. In our opinion the evidence sustains the verdict.

Affirmed.