Poncin v. Furth , 15 Wash. 201 ( 1896 )

The opinion of the court was delivered by

Gordon, J.

The appellants are administrators of the estate of Henry L. Yesler, deceased, and appeal from a judgment of the superior court of King county, rendered in an action by respondent upon the promissory note of the said Yesler. The complaint in the action alleges in substance that the said Yesler on the 2d day of December, 1890, for value received, duty made and delivered his promissory note payable to the order of the respondent, said note being for the sum of $23,477.22, bearing, interest at one per cent, per month from date, payable at maturity, said note being payable “ twenty years after date without grace or upon my death should I die before twenty years.” The note also contains provision for the payment of five per cent, attorney’s fees in case of suit or action upon the note. The complaint further alleged the presentation of the claim to the defendants as administrators and that the same was rejected by them; that respondent is the owner and holder of the note and that the same has not been paid. All of the allegations of the complaint were denied by the answer save only the allegation relating to the presentation and rejection of respondent’s claim by the administrators, which allegation is expressly admitted.

The appellants complain of the ruling of the court in disallowing their peremptory challenges to jurors Bradley and Carpenter. The record discloses that both plaintiff and defendants had examined the jurors as to their qualifications and “passed for cause.” Thereupon the plaintiff interposed a peremptory challenge to one of the jurors and the juror having been excused, another was called, examined and passed by both parties. Thereupon counsel for the defendants remarked, “We will take the jury.” The plaintiff proceeded to exercise a second peremptory challenge and another juror having been called, examined and passed for cause, defendants’ counsel proffered a challenge to juror Bradley, who was on the panel when counsel for defendants had waived their first peremptory challenge. The court refused to allow the challenge-, holding that defendants had waived their right of challenge as to jurors in the box at the time when defendants were called upon to take their first peremptory and could only exercise the right as to jurors thereafter called.

We think the ruling was right. Sec. 348, Code of Procedure (Vol. 2, Hill), is as follows:

“ The jurors having been examined as to their qualifications, first by the plaintiff and then by the defendant, and passed for cause, the peremptory challenges shall be conducted as follows, to wit: — The plaintiff may challenge one, and then the defendant may challenge one, and so alternately until the peremptory challenges shall be exhausted. The panel being filled and passed for cause, after said challenge shall have been made by either party, a refusal to challenge by either party in the said order of alternation shall not defeat the. adverse party of his full number of challenges, but such refusal on the part of the plaintiff to exercise his challenge in proper turn shall conclude him as to the jurors once accepted by him, and if his right be not exhausted, his further challenges shall be confined, in his proper turn, to talesmen only.”

Counsel for the defendants insist that the rule adopted by the court is applicable only to the plaintiff. The statute is incomplete, but we do not think that the legislature could have intended to prescribe one rule for the plaintiff and a different one for the defendants. The construction contended for by appellants would be most unjust to a plaintiff and its adoption would not place the parties to the controversy upon an equal footing, as we think the legislature intended that they should be. Jurors Carpenter and Bradley were in the box when the defendants were called upon to exercise their first peremptory challenge. They were then afforded an opportunity of challenging one of said jurors. They elected to waive that right and were thereafter properly restricted in exercising subsequent challenges to jurors thereafter called.

Cases cited by the appellants from Michigan and California are not regarded by us as being applicable, inasmuch as the subject in those states appears to be unaffected by statute, but were we to adopt the construction claimed for this statute by appellants’ counsel, we think the ruling of the court should be regarded as harmless error merely, inasmuch as we have concluded from an examination of the evidence that the jury would not have been warranted in finding for the defendants. The evidence was all one way and it was sufficient to have warranted a peremptory instruction in favor of respondent. The answer consisted of denials and no affirmative defense was set up. The proof upon the part of the plaintiff was full and ample and the verdict the only one which could be permitted to stand, no matter what the personnel of the jury.

2. We do not think that the court committed any reversible error in overruling defendants’ objections to the several questions propounded to witnesses examined by the respondent, or in denying the several motions to strike out the testimony of said witnesses-. There was no subscribing witness to the note, nor was any one produced who claimed to have seen the deceased sign it. Various parties were examined, however, who showed themselves to be familiar with the handwriting of the deceased. The witness Denny, for example, testified that he had been intimately acquainted with the deceased for upwards of forty years, a portion of which time he was in partnership with him; that his business relations with him were extensive and frequent, and that he had frequently seen the deceased sign his name. Witness added, “I might say I was almost as familiar with his handwriting as I was with my own.” Thereupon the witness being shown the note in suit gave it as his opinion that the signature was the signature of the deceased, adding: “I have no doubt of that being his signature.” Similar testimony was given by other witnesses. Appellants insist that no proper foundation had been laid for this testimony and that none of the witnesses were shown to be competent to give an opinion as to the genuineness of the signature in question.

“ There is no precise standard fixing the degree of knowledge necessary. The question of qualification depends rather on the source of knowledge than its degree. . . . After showing knowledge of the handwriting . . . founded on adequate means of knowledge, the witness may testify to his belief or his opinion, as to genuineness; and this evidence is sufficient to goto the jury in proof of execution.” Abbott, Trial Evidence, pp. 394, 395.

3. It is next insisted that the court erred in overruling defendants’ objection to the introduction in evidence of the note. The objection is that there was no sufficient proof that it -was made for a valuable consideration or of its delivery and non-payment. Appellants concede that while in an action upon a note against the maker, these would be presumed from the proof of due execution and production of the note by a plaintiff, still in this action the suit is not upon the note, but upon the rejected claim, and that no presumptions will be indulged as against the administrators of the deceased maker.

As already noticed the answer to the suit contains denials only; payment and want of consideration are affirmative defenses and should be pleaded. We are cited to no authority which supports the contention that the rules of evidence are changed when a suit is brought upon negotiable paper against the legal representative of a deceased person and that “ the death of the maker . . . wipes out the presumptions and rules of evidence which control such paper among living persons.”

The contrary doctrine is recognized in Carnright v. Gray, 11 N. Y. Supp. 278; also, Garrigus v. Home, Frontier & Foreign Missionary Society, 3 Ind. App. 91 (28 N. E. 1009).

4. Upon the trial the court over the objection of appellants permitted the claim which had been rejected by the administrators and the letter accompanying the rejection to be introduced. The purpose for which these were offered is stated by the respondent’s counsel to have been to show that the administrators had required no vouchers of the plaintiff as they were by law authorized to do. We think the proof was competent; also, that it was quite immaterial under the pleadings. It was at most a harmless error, and does not justify argument.

5. The verification to the claim presented to the administrators was sufficient under § 980, Code Proc., and that section was in full force at the time when the verification was made. State v. Halbert, 14 Wash. 306 (44 Pac. 538).

6. The effect of the verdict and judgment is determined and controlled by the statute, § 990, Code Proc. (Vol. 2, Hill), and their form is of the least importance.

7. It was not error for the court to include the attorney fee provided for by the, note. Wolverton v. Exchange National Bank, 11 Wash. 94 (39 Pac. 247).

An examination of the entire' record fails to disclose any reversible error and the judgment will be affirmed.

Hoyt, C. J., and Scott, Anders and Dunbar, JJ., concur.