Judges: Clay, William
Filed Date: 12/21/1917
Status: Precedential
Modified Date: 10/18/2024
Opinion -op- the Court by
Affirming.
Ina F. Torian and her husband, T. H. Torain, brought this -suit against Addie Caldwell, individually and as ex
“$10,000. Paducah, Ky.,
■Friday, March 10,. 1905-
“On or one day after my death, I do hereby promise^ to pay to T. H. Torian the sum of Ten Thousand Dollars and I also do hereby authorize my executor to pay the-above sum to T. H. Torian on the above date mentioned herein for his valuable services rendered in procuring-valuable evidence for me to this amount in the law suit between myself and the Lang Bros., and for many other-valuable deeds that T. H. Torian has done for me that he-has never been paid for, this note bearing interest from, this date at the rate of six per cent, until paid.
(Signed) “S. B. Caldwell, Jr.
“Witnesses,
“Gr. T. A. Gilberto,
“J. E. Torian.”
By endorsement dated May 5th, 1906, the payee, T. H7 Torian, assigned the note to his wife.
The defendants pleaded non est factum and no consideration. A trial before a jury resulted in a verdict, and judgment for defendants, and plaintiffs appeal.
It will be observed that the note in question appears-to have been executed on March 10, 1905. Samuel B.. Caldwell, Jr., died on June 14, 1916, after a severe ill— néss covering a period of about three years. He was possessed of a large estate which he devised to his wife-with certain provisions for the benefit of his four infant children. At the time of his death the testator was indebted to certain Paducah hanks in the sum of about $30,000.00. When- suit was brought, the note had been, running for over eleven years, with interest at the rate of 6 per cent, per annum, and the principal and interest amounted to about $17,000.00.,
On the question of genuineness of the payor’s signature, the defendant introduced a number of witnesses.' Mrs. Caldwell, widow of the decedent, and Mr. and Mrs. Mallory, his brother-in-law and sister,'testified in substance that the decedent wrote a free running hand, while the signature on the note was in a cramped and labored hand, and gave it as their opinion that the signature was not in the handwriting of the decedent. In addition to this testimony, about fifty checks containing
On the question of no consideration,' it is contended that the evidence was not sufficient to take the ease to the jury and that the instructions were not in proper :form. On this question J. G. Husbands, who was decedent’s partner and attorney for a number of years, and who conducted the law suit of Caldwell v. Lang, testified that T. H. Torian never had anything to do with procuring, or assisting in procuring, any evidence in that case and that he never knew of the existence of such a
The instructions are as follows:
“1. If you shall believe from the evidence in this case that S. B. Caldwell signed his name to the note sued on and read to you in evidence, and that said note was signed by him and delivered to the plaintiff, T. H. Torian, in consideration of services rendered by said Torian to said Caldwell, as stated therein, then the law is for the plaintiff and you will so find.
“2. But unless you shall believe from the evidence that said S. B. Caldwell signed his name to said note sued on and delivered same to T. H. Torian, and in consideration of services rendered by said Torian to said Caldwell, as stated in said note, then the law is for the defendant and you will so find.”
It is insisted that the instructions are erroneous, because they are so framed as to impose on plaintiffs the burden of proving the consideration. In this connection it is insisted that the trial court should have told the jury in. substance that if they believed from the evidence that Si B. Caldwell signed the note sued on, they should'find for plaintiffs, unless they further believed from the evidence that the note was given without consideration. It may be conceded that under our statute and decisions, the note in question imported, a consideration and it was not necessary for plaintiffs either to allege or prove the consideration. The only exception to this ’ rule is that if one declaring on an instrument importing a consideration unnecessarily sets out the consideration, he must prove it. Bronston’s Admr. v. Lakes, 135 Ky. 173, 121 S. W. 1021. Here plaintiffs, did not set out the'consideration, but merely alleged the maker’s promise .and failure to pay. True, they filed the nóte as an exhibit which recited the consideration for which it was given, but its filing only had the effect of preventing plaintiffs from pleading contrary to its terms and did not impose upon them the burden of proving the recited consideration. This being true, the instructions would have been in better form had they been framed in conformity with the suggestion of counsel for plaintiffs, but after all the
Lastly, it is insisted that the court erred in refusing to permit T. H. Torian, the payee in the note, to testify that he saw Caldwell sign the note, and that the signature thereon was Ms signature. It is argued that the witness was competent to testify on this question, because Mrs. Caldwell, who was her husband’s executrix and devisee, had first testified that the signature was not that of her husband.
Section 606, subsection 2, provides in part as follows :
“2. Subject to the provisions of subsection 7 of this section, no person shall testify for himself concerning any verbal statement of, or any transaction with, or any act done or omitted to be done by, an infant under fourteen years of age, or by one who is of unsound mind or dead when the testimony is offered to be given except for'the purpose, and to the extent, of affecting one who is living, and who, when over fourteen years of age and of sound mind, heard such statement, or was present when such transaction took place, or when such act was done or omitted, unless . . . the decedent, or a representative of, or some one interested in, his estate, shall have testified against such person, with reference thereto.”
Subsection 7 also provides:
“7. The assignment of a claim by a person who is incompetent to testify for himself shall not make him competent to testify for another.”
' Here Mrs. Caldwell, though interested in her husband’s estate, did not claim to be present when the noté was signed or give any testimony in reference to that transaction. After qualifying herself to give opinion evidence on the question, she merely stated that the signature on the note was not that of her husband. T. II: Torian did not qualify himself to give expert evidence on the subject of the signature, but was offered as a witness for the sole purpose of showing that he was present and saw Caldwell sign the note. Since Mrs. Caldwell had not testified as to that transaction, it follows that he was not competent to testify in reference thereto.
Judgment affirmed.