Nicholson v. Snyder , 97 Md. 415 ( 1903 )

This suit was brought to recover the amount of three promissory notes payable to the order of J. Henry Snyder of Charles, made and signed by James A. Nicholson, and purporting to be signed by Laura V. Nicholson, his wife, but James A. Nicholson having died before suit was brought, the appellant was the sole defendant. These notes were as follows: One for $2,000, dated August 27th, 1899 @ 4 months, one for $2,000, dated November 28th, 1899 @ 2 months, and one for $400, dated November 13th, 1899 @ 4 months. The declaration contained the common counts, and a special count on each of the notes, and the plaintiff annexed thereto the affidavit required when proceeding under section 313 of the New Charter of the city of Baltimore known as the Practice Act. The defendant pleaded the general issue pleas, and annexed thereto an affidavit denying that her alleged signatures to said notes were written by her or by her authority, as required by section 312 when such signatures are denied. Upon the trial, a verdict for $5,189.79, the full amount of these notes, was rendered for the plaintiff, and the defendant has appealed from the judgment entered thereon.

The plaintiff contended that section 108 of Art. 75 of the Code, regulates the defense, and that under it, the denial of defendants could only be made in the plea itself, and that the defense of forgery was therefore not in the case, but the Court ruled that the denial could be made in the affidavit as provided by sec. 312 of the New Charter. Since that ruling was made, its correctness has been established by two recent decisions in this Court, one in Farmers and Mechanics Bank v. Hunter, ante p. 148, decided April 1st, 1903, under the Local Law of Carroll County, and one in Horner v. Plumley, ante p. 271, decided April 22d 1903, under sec. 313 of the New Charter, the latter being substantially the same as the Local Law of Carroll County. It is unnecessary therefore to dwell upon that question. It was contended however by the plaintiff that the defendant's affidavit did not conform to the requirements of sec. 312, and this objection will be first considered. That section provides that the affidavit shall state that the affiant "knows that such signature was not written by, or by the authority of, the person whose signature it purports to be;" the defendant's affidavit being that "she knows her alleged signatures upon the notes filed with the declaration in this case, were not written by her, or by her authority;" the argument of the plaintiff being that it should have said that "none of her alleged signatures upon said notes were written by her or by her authority." We do not think this criticism can be allowed to prevail, though it might have been more prudent to exclude the possibility of criticism by using some such language as it suggests. We think however the language used constitutes a sufficiently clear denial of the authenticity of all the signatures, and is, in legal contemplation, a denial of the signature of each. If there could otherwise be any serious question upon this point, it is removed by the reference in the affidavit to the notes, as being those "filed with the declaration in this case," thereby emphasizing that the denial embraces all the notes sued on, and consequently,every one of them; and we are not required to strain the construction of a statute, or the meaning of the language of this affidavit, for the purpose of depriving a party of so meritorious a defense as forgery. During the progress of the trial eight exceptions were taken to rulings upon the evidence, and one to the rulings on the prayers.

The first exception was taken to the admission in evidence of the record of a proceeding in bankruptcy instituted in the United States District Court by the present plaintiff against the present defendant and her husband, upon the first of the promissory notes herein mentioned, which proceeding was, after the death of the husband, dismissed without prejudice, upon petition of the plaintiff because he had ascertained to his satisfaction that Mrs. Nicholson was not in fact insolvent. This record was offered with the special purpose of contradicting by Mrs. Nicholson's answer in that proceeding, her plea and affidavit in this case. The eighth exception was taken to the refusal of the Court to allow the notary public before whom the defendant's answer in the bankruptcy proceeding, purported to be sworn to, to impeach his official certificate. Both these exceptions were abandoned by the defendant at the argument in this Court, and we think correctly.

Among the proceedings in bankruptcy which were admitted in evidence was a paper purporting to be an answer by Mr. and Mrs. Nicholson to the petition of the plaintiff, which expressly admitted "the indebtedness of $2,000 alleged in the petition," but denied the insolvency of Mrs. Nicholson. This paper was signed by Mr. Nicholson, and by John W.H. Fry, his counsel, who signed as "attorney for respondents," but it did not purport to be signed by Mrs. Nicholson. After the plaintiff closed his case, the defendant called a Mr. Schaeffer as a witness, and offered to prove by him the following facts: That he went with Mr. Nicholson, at his request, about February 2d 1900, that being the date of the alleged answer, to Fry's office; that Fry prepared the alleged answer then and there, in their presence; that the notary, William H. Jones, was sent for and certified the affidavit attached to the answer; that Fry then said it was very important it should be immediately filed in the United States Court and that he had only a moment to get over to Court, as it was then nearly four o'clock; that Mrs. Nicholson was not present and did not sign the answer then, and that so far as he knew there was no communication between Mrs. Nicholson, and Mr. Fry and the notary on that day; but the Court refused to allow this offer, and this constitutes the second exception.

Mrs. Nicholson was then sworn as a witness, and was asked, after referring to the answer, "Had you any knowledge of the preparation and filing of that answer?" which was also refused, and it constitutes the third exception.

She was then asked, "did you authorize Mr. Fry, or any one, to prepare that answer for you?" which was refused, and this constitutes the fourth exception.

She was next asked, "Did you swear to that answer?" which was also refused, and this constitutes the fifth exception.

She was next asked, "Look at the note dated August 27th, 1899, for $2,000, payable to the order of J. Henry Snyder of Charles, and state whether you ever signed it, or authorized any one to put your signature to it?" which was also refused, and this constitutes the sixth exception.

Lastly, she was asked, "Have you ever, since the date of that note, ratified it, or adopted it, or promised to pay it?" which was also refused, and this constitutes the seventh exception.

These rulings are all manifestly based upon the theory that the alleged answer in the bankruptcy proceedings was a conclusive admission of indebtedness upon that note, and that as the evidence offered contradicted that answer, it was not admissible. These rulings therefore, must either stand, or fall, together.

The plaintiff then offered three prayers, all of which were granted, and the defendant offered five, all of which were refused except the second which dealt only with the two notes not involved in the bankruptcy proceedings, as to which the jury were instructed that if they believed they were never signed by Mrs. Nicholson, nor authorized nor ratified by her, and that she never promised to pay them, then the plaintiff could not recover thereon.

For the purposes of this case it will only be necessary to consider the first prayer of the plaintiff and the first prayer of the defendant. By the plaintiff's first prayer, the jury was instructed that the defendant was estopped from denying her liability upon the note of August 27th, 1899, and that as no evidence had been offered of payment of any part of this note, the verdict must be for the plaintiff for the amount of that note with interest.

The defendant's first prayer which was refused, asked that the jury be instructed that if they believed Mrs. Nicholson did not sign that note, nor authorize any one to sign it for her; that she never ratified the signing, never assumed any liability for the note, and never promised to pay it; then the plaintiff could not recover thereon.

It will thus be seen that all the exceptions, and the two prayers above-mentioned, involved substantially the same question, and may all be considered together. It is settled law that a record in a chancery suit between the same parties, and relating to the same subject of inquiry, is admissible evidence in a subsequent suit between the same parties for the purpose of proving antecedent admissions of either party relative to rights again involved in controversy; (Mobberly v. Mobberly,60 Md. 376), and this is equally true of a record in a Bankruptcy Court. This rule rests upon principles sound in themselves, and as satisfactory to the lay as to the legal mind, for consistency in essential and fundamental matters is universally regarded as one of the surest indications of truth and accuracy, as inconsistency is of doubtful veracity or infirmity of memory. When one, is called on in law to assert or defend a right, he is not likely to make any admission destructive of, or prejudicial to, his right, unless compelled by his regard for truth, and therefore it is eminently proper that any such admission, whether made in the pleadings, or in the evidence, should be regarded as of high probative force. But the whole value of such evidence depends upon whether the admission was in fact made, as it purports by the record to have been made, for if not infact made, the refusal to inquire into this fact results in the substitution of falsehood for truth. If Mrs. Nicholson did not make, or authorize this answer to be made for her, it ought not to have gone to the jury as her undisputed admission of her indebtedness upon the note in question, and if she did not swear to it, it ought not to have gone to them as her confessedly sworn admission. It was prima facie proof of such admission, and as such was properly admitted in evidence, but we can perceive no sound or just principle upon which she could be precluded from rebutting this prima facie case. It is very clear that the notary was properly not allowed to impeach his certificate, as held in Central Bank of Frederick v. Copeland, 18 Md. 305;Matthews v. Dare, 20 Md. 271, and Highberger v. Stiffler,21 Md. 351; but these cases just as clearly recognize that the testimony of Schaeffer and Mrs. Nicholson, excluded in the 2d 3 rd, 4th and fifth bills of exception should have been admitted, for in the Copeland case, approved in the two later cases, the Court said: "That the statements contained in the certificate (to the execution of the mortgage by Mrs. Copeland) under the circumstances, and as between the parties in the case, were open to contradiction by proper and competent proof, cannot be doubted." If this cannot be done in the present case, then as was said by counsel at the argument, "a lawyer and a notary, by conspiring together to file a sworn answer on behalf of a defendant, could forever preclude such defendant from showing that he had no part or lot in the making or filing of such answer." And here it may be noted as illustrating the wrong of excluding such evidence, that this record discloses an agreementof counsel that the notary if present, would testify, subject to exception, that Mrs. Nicholson was not present when her husband swore to the answer, and never swore to it herself; and it also discloses the fact that Mr. Fry, the attorney, was not sworn as he might have been, to prove, if he could truthfully do so, that Mrs. Nicholson did authorize and swear to the answer. It is true that the testimony of the notary, as offered, was properly excluded for the reasons stated, but treating it as if expunged from the record, we may ask why the notary was not called as he might have been to prove that his certificate possessed in fact the conclusiveness sought to be given it in law by the plaintiff. It follows also from what we have said that the testimony of Mrs. Nicholson which was excluded in the 6th and 7th exceptions should have been admitted, and that the Court erred in striking out all the testimony admitted subject to exception, tending to show she was not liable on the note of August 27th, 1899, for if the answer was not hers, there was no reason why she could not testify she had never signed nor ratified the note, and no reason why any evidence tending to show she was not liable therefor should be stricken out.

If, however, the alleged answer were in fact her answer, and even if it were made under oath, we are of opinion that its statements would not be legally conclusive against her, and that she would be entitled to explain them by any competent evidence in her possession, provided, of course, that the principle of estoppel did not preclude it, as we shall later show it does not do in this case. This is the law as stated in 1 Greenleaf'sEvidence, sec. 210; 2 Taylor on Evidence, sec. 857, and 2Wharton on Evidence, sec. 833. In Perry v. Simpson,40 Conn. 317, it was said: "Admissions made in a former trial may be admitted, but the circumstances surrounding the admissions relied on, the purposes for which they were made, c., may be shown." This language is especially apposite to the present case in view of the condition of Mr. Nicholson's health at the time, and the painful situation in which Mrs. Nicholson was placed thereby as disclosed by the record in the bankruptcy case. In Chilton v.Scruggs, 73 Tenn. 318, the Court said: "One who has made solemn admissions under oath in the course of judicial proceedings will not be permitted to deny them, without first showing that they were made inconsiderately, or without full knowledge of the facts;" and in Hamilton v. Zimmerman, 5 Sneed, 39; "In either case, whether in pais, or in judicial proceedings, if it satisfactorily appear that the party made admissions inconsiderately or without full knowledge of the facts, it is proper that the Court should relieve him from the consequences of his error." In Blank v. Klein, 53 Fed. Rep. 436, it was said, "Judicial admissions and pleadings of a party in another suit than the one under consideration are open to explanation or rebuttal, or it may be shown they were made by mistake," and the following passage from Wharton on Evidence, sec. 838, was cited and approved: "The qualities of an estoppel which are imputable to a party's pleas so far as concerns the particular case in which they are pleaded, are not imputable to such pleas when offered collaterally." In Elliott v. Hayden,104 Mass. 180, an admission made in a bill in equity sworn to by the plaintiff was held "competent, but not conclusive" against him. In Coombs v. Hodge, 21 Howard, 397, where the petition and answer were signed by counsel and not by the parties, it was held they could not be resorted to for admissions of the respective parties. In that case, it should be observed that the plaintiff in the former suit was not the same as in the latter, but the Court cited in support of the law announced, the case ofBoileau v. Ruttlin, 2 Exch. 665, in which BARON PARKE said that "pleadings in equity as well as at common law are not to be treated as positive allegations of the truth of the facts therein, but only as statements of the case of the party to be admitted or denied by the opposite side, and if denied, to be proved, and ultimately submitted for judicial decision. The factsactually decided by an issue in any suit cannot be again litigated between the same parties, and are conclusive evidence between them, * * * *. But the statements of a party in a declaration or plea, though for the purposes of the cause he is bound by those that are material, ought not, it should seem, to be treated as confessions of the truth of the facts stated." In the case before us, nothing was actually decided in the former suit, that being dismissed by the plaintiff upon his own admission of inability to prosecute it to a successful termination, and it follows from the authorities we have cited, that the answer in the bankruptcy proceeding, even if shown to be her answer could not be held conclusive against her.

It only remains to inquire whether upon any principle of good faith and fair dealing, Mrs. Nicholson could be estopped by her answer, even if it had been filed with her knowledge and consent.

The leading case of Alexander v. Walter, 8 Gill, 251, adopted the definition of an estoppel in pais given in Dezell v. Odell, 3 Hill, 215, in these words: "We have the clear case of an admission by the defendant, intended to influence the conduct of a man with whom he was dealing, and actually leading him into a line of conduct which must be prejudicial to his interests unless the defendant be cut off from the power of retraction. This is the very definition of an estoppel in pais. For the prevention of fraud the law holds the admission to beconclusive." And in the same case the Court cited the following language from Welland Canal Company v. Hathaway, 8 Wendell, 483: "As a general rule a party will be precluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter," and similar language was also cited from Hearne v. Rogers, 9 Barn. and Cress. 577.

In Homer v. Grosholz Coquentin, 38 Md. 526, this Court said, "To constitute such an estoppel there must be acts or admissions intended or designed to influence the conduct of another; the acts or admissions must come to the knowledge of the party; his conduct must be influenced by them, and a denial of them must operate to the injury of the party whose conduct is influenced by them. The Court of Appeals in the case ofAlexander v. Walter, adopted the rule laid down in theWelland Canal Company's case, and applied it to the case before them, and it must be regarded as the law of this State."

It is settled at common law that an estoppel in pais need not be pleaded and may be given in evidence under the general issue. 8 Ency. Plead. and Prac. 6, and it is so held in this State.Alexander v. Walter, supra. But the rule as to what must be proved to constitute an estoppel, is the same as to what must be alleged to constitute a good plea of estoppel, and this rule is that every fact supporting an estoppel in pais must be clearly made out by the party relying on it. 8 Ency. Plead. andPrac. 10, and Sharon v. Minnock, 6 Nev. 377, where it was held that if a plea does not allege that the party relying on the estoppel was induced to act differently from what he otherwise would, and that he was prejudiced thereby, the plea will be bad. There is no evidence whatever that the plaintiff in this case has done, or omitted to do anything, which he would otherwise have done, or omitted to do, nor any suggestion of any possible prejudice resulting to him from the admission made in the alleged answer of Mrs. Nicholson. He was informed by her petition filed in those proceedings July 16th, 1900, that she claimed her signature was a forgery, and he prayed leave to dismiss his petition April 12th, 1901, solely because he admitted that she would be able to prove her solvency as she alleged. If we could discover in this case the essential requisites of an estoppel inpais, we should not hesitate to give effect to it, but we cannot discover them.

Judgment reversed with costs to appellant above and below, andnew trial awarded.

(Decided June 30th, 1903.)