Harrington ex rel. Cooke v. Gable

Mr. Justice Woodward

delivered the opinion of the court,

This was an issue directed by the court below to try the question whether the signature of Mrs. Gable, the defendant, to a judgment-note executed on the 1st of April 1868, in favor of William Harrington, was genuine. The note purported to have been signed by the defendant and her husband Ferdinand Gable, who has since died. It was for the sum of $762.24, payable with interest in specified instalments extending to the 1st of April 1874. On the trial, the allegation of the plaintiff was that Harrington had sold and conveyed a piece of land to the defendant upon her agreement to secure -the purchase-money by a judgment, and that this note was given in pursuance of that agreement. The judgment was entered on the 11th of May 1868. On the 11th of December 1873, an application to open it was made under the affidavit of the son of the defendant, that he had been informed by his mother, and believed, that she had never signed the note, and had never authorized any one to sign it for her. The rule to show cause why the judgment should not be opened, which was granted when the application was made, was made absolute on the 7th of February 1874.

At the trial of the issue, Isaac Parker, whose name was affixed to the note as a- subscribing witness, was called to prove its execution. He testified that he subscribed it at the request of Harrington and Ferdinand Gable; that it had not then been signed by either Gable or his wife; that Harrington said he wanted his name there, for he had to have a witness; and that Gable said it would make the witness no trouble, as he had been buying a piece of land, and he. was to take the note home and have his wife sign it. He did not see the paper afterwards until depositions were being taken in the controversy that had then arisen between thgse parties.

With the failure of the attempt to prove the-execution of the instrument by the subscribing witness, the primary sources of evidence on behalf of the plaintiff had.been exhausted. In view of the affidavit of her son that she had not signed the note, and of her own position as a contestant in the issue, it would have been a hazard to call the defendant, which the plaintiff was not bound to take. The difficulty in proving the handwriting of a lady in the position of Mrs. Gable by the testimony of witnesses called in the usual way, can readily be realized. A resort to secondary evidence to lay ground for the admission of the instrument was, inevitable ; and that which was given, as well as much of that which was offered and rejected, was unobjectionable, for it carried on its face no indication that better evidence could have been obtained. Mr. Harrington testified that this note was the only paper signed by Gable and his wife that he had ever held. Mrs. Betsey Strope swore to two conversations with the defendant, in which the latter declared that she did not sign the note, but admitted that she had put her name to one paper that had been given to Mr. Harrington. George Strope heard one of the conversations with his mother, in which the defendant said she had never signed more than one paper for Mr. Harrington. Mrs. Jane Decker was told by the defendant that she and her husband had bought land of Harrington, and had given him their obligations for it. J. B. Perry heard Gable and his wife talk about the land they had purchased. She said she was sorry they had bought it, for it put them so much in debt, and that if she had not been foolish, she would not have signed the paper. William Cook, the plaintiff, swore to three payments made by the defendant, on account of the note, in the lifetime of her husband. There was enough in this testimony to require the submission of the instrument to the jury. It was for them to say, in view of the statement of Harrington that be bad received no other than this paper in tbe nature of an obligation from tbe defendant, and in view of tbe evidence of ber admission that she bad executed one paper in tbe nature of an obligation in bis favor, whether this note was the paper to which they both referred. Tbe testimony, it is true, indistinctly indicated tbe facts sought to be established; but there would have been no room for the controversy from the outset, if it had been direct and clear. The truth as to the rights of the parties must be found by following such-lights as the surroundings of the case afford. There is no difference as to the admissibility of this kind of evidence between direct admissions and those which are incidental, or made in some other connection, or involved in the admission of some other fact: 1 Greenleaf’s Ev., § 194.

The plaintiff was entitled to show, in connection with the evidence which the court admitted, not only the note itself, but the sale and conveyance of the land by Harrington to Mrs. Gable, her acceptance of the deed, her possession of the land, her agreement to execute a note for the purchase-money, the delivery by her husband to Harrington of the note in suit with her name signed to it, and the fact that she went with her husband subsequently to-the plaintiff and made a payment of one hundred dollars. With the eventual effect of the testimony on the minds of the jury, the court would have nothing to do. The circumstances under which Parker subscribed his name as a witness before the note was executed, might have afforded ground for suspicion and distrust. The fact itself was certainly unusual, and was capable of producing mischievous results. But all such considerations it was for the jury to weigh. The duty of the court was to receive the evidence. The second, third and fourth assignments of error are sustained.

The offer of the note and of the record of the judgment at the opening of the cause was premature, and was properly rejected.

Judgment reversed, and venire facias de novo awarded.