Shaw v. Emery , 42 Me. 59 ( 1856 )

Tenney, C. J.

According to evidence not objected to, the defendant’s wife, in his absence, was induced by William H. Snell, to sign her husband’s name to the note in suit, and to exchange it for one of the same amount given by the defendant to Snell, but running to Charles B. Ellis; and, on the same day, Snell sold the same to the plaintiff.

Snell being released by the plaintiff, was allowed, against the objection of the defendant, to detail fully the conversation which took place between the witness and the defendant’s wife, at the time the note was signed by her; but the defendant made no objection to proof of the acts done at the same time.

In order to maintain the action, the plaintiff undertook to prove, first, the manner in which the note in suit came into existence, and by whom it was signed; and second, that the signature of the wife of the defendant, upon the note, was adopted by him, and her act ratified. No objection was made to this, if the proof was competent.

The acts performed in preparing and signing the note in suit, and exchanging it for the one produced by Snell, cannot be supposed to have occurred without any conversation connected therewith, especially if the defendant’s wife was induced by Snell to perform the acts done by her. The expressed wish for the change of notes, of Snell, and the willingness of the wife to sign the note for her husband, must have been made known by one to the other, through the means of speech, when they were in each other’s presence. Such conversation was clearly a part of the res gestee, so far as it took place in connection with the acts stated in evidence. Other conversation may have taken place at the time, having no relevancy to the issue; but the case does not so find, and it cannot be assumed.

When Snell informed the defendant, afterwards, what ho and his wife had done, the latter replied, “ it was all right, he should have done just so, if he had been at home.” The conversation attending the signing of the note, though verbal, were acts, equally with others, and were equally embraced by the most precise rules in the use of language within the meaning of the witness’ statement, that he told the defendant “ what he and the defendant’s wife had done.” If Snell had omitted to inform the defendant of the material parts of the conversation pertaining to the transaction, the statement, that he told him what he and his wife had done, was untrue.

If, however, the conversation was not in fact communicated by Snell to the defendant, in connection with the information of the acts done, the ruling of the Court, to which exceptions were taken, upon this point was not erroneous.

It being competent for the plaintiff to prove that the note was signed by the defendant’s wife, with conversation connected with it, as we have already decided, it did not become otherwise, because subsequently in the course of the trial, he failed to prove the ratification by the defendant, of her act in putting his name to the paper. The former being established without any infringement of legal principle, the failure to prove the ratification, did not render the evidence, which was proper when adduced, entirely illegal afterwards. If it did not appear, from Snell’s testimony, that he stated the conversation between himself and the defendant’s wife, as well as the other acts, to him, the Judge could have been requested to instruct the jury on the consequence of such omission. But on the point of ratification no exceptions are taken to any ruling, instruction or refusal to instruct.

The defendant’s counsel insists, that as it appears in the evidence reported, that at the time of the supposed ratification of the acts of the wife of the defendant, by him, his conversation was with Snell, and after he had parted with all interest in the note, the ratification, even if otherwise sufficient, cannot avail the plaintiff. When this case was before the law Court at a previous term, this point was presented by the defendant, and it was then open to him; but the fact does not appear to have been regarded by the Court as fatal to the plaintiff’s recovery. Shaw v. Emery, 38 Maine, 484. But this point was not taken at the last trial, and the argument thereon is inappropriate.

The testimony offered by the defendant to show the improbability of the transaction, as stated by the witness Snell, was not a mode of impeaching the witness known to the law. The evidence offered had no tendency to show, that the witness had given a different account of the transaction, concerning which he testified, and it does not appear that his attention was called to the matter, which the defendant offered to prove. Evidence to impugn the character of a witness is commonly to be confined to his character for truth. Commomwealth v. Moore, 3 Pick. 194. Exceptions overruled.

Hathaway, Cutting and Goodenow, J. J., concurred. Rice, J., dissented.