Fadaol v. Rideau ( 1930 )

ELLIOTT, J.

Nahon Fadaol brought suit against Jean Baptiste Rideau for $264, alleged to be due him on a note for that amount.

The defendant, Rideau, denies that he executed the instrument described in the petition of the plaintiff. He pleads under reservations, and, in the alternative, the prescription of five years.

Under the answer, the burden of proof is upon the plaintiff to prove that the signature which the instrument sued on bears in the form of a mark is that of the defendant. If that fact be established, then the burden is upon the defendant to show the fraud and misrepresentation alleged by him in regard to the amount which it calls for.

J. C. Fadaol, witness for the plaintiff, and J. B. Rideau, defendant, both testified that defendant made payments on his indebtedness to the plaintiff contracted in 1920, but they differ widely in regard to the time at which it was done.

J. C. Fadaol testifies that the payments were made, one September 2, 1922, for $20, another. September 19, 1922, for $80, and that on October 1, 1923, the interest was paid up to that time. Defendant testifies that he paid $20 in October, 1920, and $80 in September or October, 1921, and in November, 1921, he paid approximately $15 in interest. Therefore it must be first ascertained whether this note on which plaintiff has brought suit bears the genuine mark or signature of the defendant. If that fact does not appear, then consideration of other matters is unnecessary.

A mark is not a signature. The mark of a person who does not know how to write is not a signature, but stands in the place of his signature, and is sufficient for every purpose except for making an olographic will.

The Negotiable Instruments Law, Act No. 64 of 1904, sec. 19, provides that:

“The signature of any party may be made by a duly authorized agent. No particular form of appointment is necessary for this purpose; and the authority of the agent may be established as in other cases of agency.”

The Civil Code, art. 2997, provides, that the power “to draw or indorse bills of exchange or promissory notes” must be express and special. And, whenever the Civil Code provides that a mark may be made in signing, it says that the party signing in that way must himself affix his mark. Civil Code, art. 190, subd. 2, arts. 1582, 2234; Code Practice, art. 675.

In this state the mark provided for in our Civil Code and Code Practice is usually made in the form of a cross, the same as in the common law.

Blackstone, speaking of the common-law method of signing, says:

“The method of the Saxons was for such as could write to subscribe their names, and whether they could write or not, to affix the sign of the cross, which custom our illiterate and vulgar do, for the most part, to this day keep up, by signing a cross for their mark when unable to write their names.” Blackstone’s Commentaries, book 2, subject, “Rights of Things,” c. 20, sec. 304, p. 225.

Under the Civil Code, “he who claims the execution of an obligation must prove it.” Article 2232.

“If the party disavow the signature * * * it must be proved by witnesses or comparison, as in other cases.” Civil Code, art. 2245.

“If the defendant deny his signature in his answer, or contend that the same has been counterfeited, the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have frequently seen him write and sign his name. But the proof by witnesses shall not exclude the proof by experts or by a comparison of the writing, as established by the Civil Code.” Code Practice, art. 325.

In this case the plaintiff endeavors to show that defendant owes the note, by showing that he owed the amount called for by the note.

J. C. Fadaol, manager of Nahon Fadaol’s, his father’s, business since 1915, substantially states: That, in the spring of 1920, the defendant requested the plaintiff to advance, not only to him, but his two sons as well, through the crops until that fall. As no definite arrangement was made as to what amount would be needed, no note was taken; but the account was an open one. Due to high prices of foodstuff and other commodities, .his bill ran much higher than he anticipated. When the fall of the year came, due to low price of cotton, he was unable to pay up all, but caused witness to execute the note in this case, which was discounted at Opelousas-St. Landry Bank & Trust Company. That the note sued on was given at the end of the year, closing the account, and evidences the balance due on said account. That matters rocked along until the fall of 1921, when he failed to make any payment whatever. In 1922, on the 2d of September, he paid me $20; on the 19th, $80. There was no other payment made on this note until 1923, when on the 1st of October he paid the interest, or a trifle more. That defendant made repeated promises, but never paid any more, etc.

The note sued on, bearing date December 16, 1920, shows a name affixed to it, his “J B x Rido.” It appears on its face that mark his the mark was made and the name “J B x mark Rido” was written by the hand of J. C. Fadaol, who signs as the only witness. It is evident that the mark was not affixed by defendant; still, if J. B. Rideau, standing by, understanding^ authorized J. C. Fadaol to affix his mark to the instrument sued on, as appears to have been done, then what was done must be regarded as having been done with defendant’s consent, within the meaning of the law, Civil Code, ar'.s. 1811 and 1819, and, though defendant may not have even touched the pen, the signing would have been binding on him.

The signing is not otherwise testified to by J. C. Fadaol, but he was later questioned in regard to the credits on the note sued on, which also purports to have been signed by J. B. Rido, by making his mark, all in the handwriting, however, and witnessed by, J. C. Fadaol.

“Q. You didn’t look to have some disinterested person sign as witness? Do you usually sign your name as witness to obligations due yourself?

“A. I did it on a thousand and one notes besides that one.

“Q. Is it usual for you to sign peoples names out of their presence, and sign it as witness, yourself?

“A. Yes, I did it as a legal transaction.

“Q. Is that your custom?

“A. No, it is not my custom, I gave him credit for what he paid.”

The defendant testifies: That he signed a note for $100 in favor of the plaintiff, at plaintiff’s request, in the early spring of 1920. That Manuel Rideau, his son, indorsed for him. That Manuel also signed a note at the same time, obtaining in that way advances for himself, for the same amount. That he indorsed for his son Manuel, his son and himself standing for each other. That two colored customers in the store were called to act as witnesses.

Manuel Rideau, called as a witness by defendant, corroborated his father.

The date and amount of the note sued on will not admit of any comparison with the note which the defendant admits signing. Not only is it different in date and amount, but Manuel Rideau never indorsed it, and J. C. Fadaol is the only witness, while the note which defendant admits having signed was, he says,. witnessed by two parties, who could not have been J. C. Fadaol, because defendant says that they were, customers in the store.

Defendant is an illiterate negro farmer. He knows nothing about business methods. The signing of a note indorsed by his son to obtain advances' from the plaintiff for making his crop in 1920 was for him an important event, a matter that he could be expected to remember.

The testimony of the defendant and his son has received our consideration; we find no reason for not accepting their testimony. The plaintiff called a witness in rebuttal, but the witness testified to nothing of any consequence. J. C. Fadaol did not himself, nor did anybody else, take the stand in rebuttal to deny the testimony of the defendant and his son, according to which, the instrument sued on cannot be the note which the defendant signed. Defendant is positive that he did not sign any other note and that he did not contract for advances beyond $100.

J. C. Fadaol testified that defendant promised at various times to pay the note sued on, but defendant denies that he did so. Plaintiff did not call on anybody to support him. He testified that his father and mother did not know how to read and write, which explains why his father left the management of such matters entirely to the witness. Still his father has, it seems, conducted an important mercantile and advancing business in the town in which he lives since 1907, borrows money from the bank, etc.

It is not necessary to pursue the matter any further. The plaintifff has failed to show by a preponderance of the proof on the subject that defendant signed the note sued on.

The lower court rejected plaintiff’s demand. The case was decided correctly.

Judgment affirmed; plaintiff-appellant to pay the cost in both courts.