Shannon v. Castner

Opinion by

Rice, P. J.,

1. The unsupported testimony of a defendant in a confessed judgment admitting the execution of the instrument upon which the judgment was entered, but alleging fraud in the procure ment or use of it, which is directly opposed by the testimony of the plaintiff, is insufficient to warrant the opening of the judgment or to be submitted to the jury on the trial of an issue awarded. In such a case the conflict of testimony is over the equity which the defendant sets up as the ground for relief from a legal liability he has assumed. The instrument itself is evidence against him, and therefore, both upon reason and authority, he must overcome the prima facie presumption arising from his own act, and establish his allegation by the quantum and character of proof required to move a chancellor to make a decree in his favor, or be left where he has placed himself under the law. And though the defendant testifies that his signature is a forgery, and there is opposing testimony, there is no inflexible rule which compels the court to open the judgment. Even in such a case the judge should exercise a sound discretion, after a careful consideration of the character and effect of the testimony: Roenigk’s Appeal, 2 Cent. Repr. 68; Essick’s Appeal, 1 Mona. 588. Nevertheless there is a plain distinction, it seems to us, between such a case, where the paper itself does not go into the scales against him, and a case where the testimony of the defendant is opposed by that of the plaintiff and the latter is aided by the presumptions arising from an admittedly genuine paper. And the distinction was clearly recognized in the recent case of Schomaker v. Dean, 201 Pa. 439, where the court went farther than we are required to go in the present case .in sustaining the order opening the judgment. The case before us is not a case of oath against oath merely, but the testimony of the defendant was supported by other testimony to such an extent as to bring the case fairly within the rule laid down in Jenkintown Nat. Bank’s Appeal, 124 Pa. 337, and the later cases.

2. Where a judgment entered upon a warrant of attorney is opened generally and without terms, the plaintiff is put to proof of his cause of action “precisely as if no judgment had been entered : ” Sossong v. Rosar, 112 Pa. 197; Harris v. Harris, 154 Pa. 501. When it is opened upon an allegation of forgery it is not usual to impose as one of the terms that, the instrument alleged to be forged shall “ be offered and read on the trial of the case as a prima facie case for the plaintiff,” as was done here. Nor were there any exceptional circumstances in this case which required the imposition of such terms. The utmost that can be claimed is that the court had discretionary power to include this in its order; it cannot be claimed that it was its duty to do so. But if in its discretion the court might have omitted it, it seems clear that it could reconsider the question and amend the original order by striking it out. The amendment was made after due notice and full consideration, and, though made after a trial had been had and a new trial granted, we cannot see that there was any abuse of discretion. Therefore, we would not be warranted in reinstating that part of the original order, which the learned judge declared was inadvertently made.

3. Where declarations or acts accompany the fact in controversy and tend to illustrate or explain it, they are treated, not as hearsay, but as original evidence, in other words, as part of the res gestee. In this case the fact in controversy was the genuineness of the signature, “ Martion Castner,” to a note purporting to be signed by him and J. P. Castner. The parties to the issue were the executor of the payee and Martin Castner. The court permitted the plaintiff’s witness to testify that the note was given for a loan to J. P. Castner, that it was drawn by the witness and signed by J. P. Castner in his presence, that it was taken away by the latter and subsequently returned by him with the name “ Martion Castner ” added. The plaintiff further offered to show by the same witness what was said at the time the note was taken away by J. P. Castner, what the condition was upon which the loan was made to him, what was done during the negotiations relative to the examination of the record as to Martin Castner, and whether upon the return of the note the attention of J. P. Castner was called to the manner in which “ Martin ” was spelled. He also offered to prove by another witness that the money loaned to J. P. Castner was applied by the latter upon another note of which Martin Castner was joint maker with him. We fail to see how the acts and declarations thus offered to be shown, standing alone, illustrate, explain or throw any light upon the fact in controversy. There being no accompanying offer to bring home knowledge of them to Martin Castner or to show that he authorized them, the evidence was irrelevant to the issue, and was properly rejected.

4. The extent to which a party may go in cross-examination for the purpose of testing the accuracy of recollection, the interest or th.e bias of an opposing witness rests largely in the discretion of the trial judge, and the appellate court will not reverse because of the admission of questions asked for that purpose, unless there has been a very plain abuse of discretion to the injury of the party complaining. The fact that an expert witness is to receive, or has received, per diem compensation beyond the legal witness fee does not affect his competency as a witness, and it may have very slight bearing upon the question of his impartiality. Nevertheless, his relation to the party calling him may be such as to warrant the jury in taking it into consideration in weighing his testimony. Therefore, it is not reversible error to permit cross-examination upon that subject within reasonable limits, which we think were not exceeded in this case by the questions referred to in the ninth assignment of error. See Commonwealth v. Farrell, 187 Pa. 408.

. 5. The general rule limiting cross-examination to the matters elicited in the examination in chief does not exclude questions as to declarations or conduct naturally tending to show the improbability of statements made in the examination in chief. Of this nature were the questions put to Martin Castner which are quoted in the fourteenth, fifteenth and sixteenth assignments. We overrule these assignments, not because the questions were not legitimate cross-examination, for we think they were, but because substantially the same questions were put to and answered by the witness in other parts of his testimony.

6. Mettie Castner, a competent witness called by the plaintiff, testified that in a conversation between her and the defendant the latter admitted that he had signed the note in controversy. When the defendant was called to contradict her, objection was made upon the sole ground that this conversation took place prior to the death of John Yeany, the payee in the note and original plaintiff in the issue. All the elements requisite to bring the case within the operation of the Act of June 11, 1891, P. L. 287, being present, the objection was properly overruled: Rudy v. Myton, 19 Pa. Superior Ct. 312. The additional objection which the counsel now raise goes to the form of the question, is without real merit and comes too late: Gorman v. Bigler, 8 Pa. Superior Ct. 440. There never was a plainer case for holding a party complaining on appeal of the admission of evidence objected to in the court below to the specific objection made to it there. See Danley v. Danley, 179 Pa. 170, Fisher v. Ruch, 12 Pa. Superior Ct. 240, and cases there cited.

7. By reason of testimony of Mettie Castner, not necessary to be recited here, it became important for the defendant to show that she and her husband Matthew went to housekeeping at Blacks Corners prior to June, 1895. For that purpose Michael Toomey, a merchant, was called and permitted to testify that it was about the time he sold them a bill of goods, and to refresh his recollection as to the date was permitted to refer to his books of account in which the items were charged. This was clearly competent: First Nat. Bank of Du Bois v. First Nat. Bank of Williamsport, 114 Pa. 1. His examination upon the subject might well have ended there, but no possible harm resulted to the plaintiff from permitting him to enumerate the articles after refreshing his recollection by reference to his books. There is no merit in the tenth assignment.

8. The plaintiff offered in evidence the deposition of one Peter Walley, taken on the rule to open the judgment. Walley was living at the time of trial and was present in court part of the time, but it appearing to the court from his preliminary examination that his mental condition was not such as to enable him to testify, the deposition was permitted to be read. His testimony was to the effect that he had seen Martin Castner sign a certain note which the plaintiff desired to use in the trial as a test paper. Later in the trial the defendant offered to contradict and impeach the witness by proof of his declarations made after his deposition was taken, to the effect that he had never seen Martin Castner sign any note. The objection was made that he had not first been examined as to these declarations and given an opportunity to explain them. But how could the plaintiff raise that objection when, by his own showing, the witness was unable to testify ? Moreover, the defendant attempted to comply with the rule but was prevented from doing so by the fact that Walley had left the court without permission. In view of all the circumstances to which we have alluded, the court exercised its discretion properly in overruling the objections and admitting the testimony referred to in the seventeenth and nineteenth assignments of error. “ The right to discredit a witness by proof of contradictory statements without first calling his attention to them in order that he may have an opportunity to explain or reconcile them is a subject on which our decisions have not always been uniform, but it is now settled by the later cases that the question is one of sound discretion in the judge trying the case, upon the circumstances before him: ” Cronkrite v. Trexler, 187 Pa. 100; Commonwealth v. Cowan, 4 Pa. Superior Ct. 579. “In this case the rule, which is based largely on a regard for the witness himself, could not have been enforced without sacrificing the interest of the party. The court was clearly right in refusing to enforce it at such a sacrifice: ” Baldi v. Metropolitan Ins. Co., 18 Pa. Superior Ct. 599. The same may be said with equal appropriateness in the present case.

9. It appears that when this note was given, another judgment note for the same amount was drawn in favor of Martin Castner and signed by J. P. Castner. This was intended to secure the former and judgment was entered upon it, but not by Martin Castner, in 1892. It became a matter of importance in the trial to determine when he first had notice of the transaction. To repel any inference that he must have got notice of it as early as 1898 through the assessment of taxes, the defendant was permitted to show that he was not assessed with taxes upon money at interest in that year. This we understand to have been the purpose of the offers which are referred to in the twentieth and twenty-first assignments of error. We cannot say that this was a wholly irrelevant fact, nor that the book referred to in the assignments was not sufficiently proved in the first instance to warrant its admission in evidence for that purpose. The twenty-third assignment may appropriately be considered in this connection. When James Pinks, a witness called by the plaintiff in rebuttal to prove that the book put in evidence by the defendant was a mere copy of the original assessment book, finally admitted upon cross-examination that it was “the only book from which the duplicate is made up charging taxpayers with taxes,” his testimony in chief became unimportant, and no error was committed by striking out his whole testimony.

10. Martin Castner having become incompetent to testify by reason of the death of John Yeany, the deposition of the former taken in 1895 and used on the rule to open the judgment, when John Yeany was alive, was offered in evidence and objected to upon the ground that it appeared on the face of the deposition that, by the advice of counsel, he had refused to answer a certain question put to him upon cross-examination. It is urged that under the authority of Stonebraker v. Short, 8 Pa. 155, it was the imperative duty of the court to reject the deposition regardless of the special circumstances. Inasmuch as his testimony given on the first trial covering the same ground was read, it is difficult to see how the error, if error there was in permitting his deposition to be read, could have been prejudicial to the plaintiff. But we need not put our decision on that ground. The question which the witness refused to answer, though perhaps proper cross-examination, was of little importance. He had testified in chief that he first saw the note in question when his attorney took him to the office of McComb and Clarke, the plaintiff’s attorneys. The question he refused to answer was, whether he went there on business of his own or that of his son. His counsel deeming this illegitimate cross-examination instructed him not to answer. But immediately preceding this he had testified, while under cross-examination: “Couldn’t tell whether McComb and Clarke were attorneys for my son, J. P., didn’t inquire into such business.” Looking at his testimony as a whole it is manifest that the question was answered substantially, and that his refusal to answer it categorically did the defendants not the slightest injury. In Crossgrove v. Himmelrich, 54 Pa. 203, a somewhat similar case, it was held that the admission of the deposition was not error. Still further, it appears that notice of the filing of the deposition was accepted by the plaintiff’s attorneys and that they filed no exceptions to it. It is argued with great force that under the rule of court quoted in the bill of exceptions the objection was thereby waived. ' The court evidently took this view of the matter, and it is well settled that, upon a question of the construction or application of its own rules a court can be reversed only for manifest and material error. See Kunkle’s Estate, in which we have this day filed an opin-' ion, and the cases there cited; also Depew v. Depew, 2 Cent. Repr. 611. The eleventh assignment is not sustained.

11. Judgment was entered on the note in question, as well as upon the indemnity note of J. P. Castner to Martin Castner, in April, 1892. The former note became due in April, 1893, execution was isssued thereon in April, 1895, and a levy made, but the application to open was not made until June 29, of the same year. According to the defendant’s own admissions he was shown the records of these judgments by his attorney early in the year 1894, but he gave no notice to the plaintiff or his attorneys that his signature was a forgery, and made no application to see the note until about the time when he moved to open the judgment thereon. The court correctly charged the jury, as requested in the defendant’s second point (thirty-fourth assignment), that no act, declaration, delay or omission on his part shown in the present case would make him liable on the note, if his name was not signed to it by himself or by his authority: Henry Christian B. & L. Association v. Walton, 181 Pa. 201, and cases cited. Nevertheless his delay of over a year in moving to open a judgment against him upon a note which he now alleges to be a forgery, and which was overdue when knowledge of the judgment was brought home to him, was a circumstance of considerable significance. This was recognized by both parties; by the plaintiff in his fifth point, which was affirmed, and by the defendant in the introduction of the testimony quoted in the twelfth assignment. The defendant’s delay did not estop him, but the circumstance being such as would properly call for some action or declaration from men similarly situated, the jury might very naturally and properly regard it as some evidence of consciousness on his part that the judgment was valid. But if his delay was involuntary, it would not furnish any ground for such inference. So also, if he consulted counsel as soon as he learned of the judgment and the latter advised him to take no action until the plaintiff should move in the matter, the effect of his delay, pursuant to such advice, as evidence of a consciousness on his part that he had no defense to the judgment might be weakened in the estimation of the jury, if not wholly destroyed. Advice of counsel would not prevent an estoppel, if his acts otherwise created one, nor would it relieve from laches where that was sufficient to bar relief; but we are not prepared to say that it was error to permit it to be proved for the narrow purpose above suggested. It is to be observed, however, that the state of mind of the defendant was not directly in issue ; that is to say, proof of what it was was not essential to the plaintiff’s case or that of the defendant. The case is not precisely analogous to an action of deceit or for malicious prosecution, or for enticing away a man’s wife, in all of which motive and intent are directly in issue. To extend the principles of such cases so far as to permit the defendant, not only to prove that his delay in moving to open the judgment was by advice of counsel, but also to put his counsel on the stand to narrate the facts that he communicated to him when he took his advice, would be unwarranted. “ Where it is important to know whether a statement made by a witness on the trial of a cause is of recent fabrication, it is sometimes competent to show that upon some former occasion, when there was no reason to suspect his motives, he stated the matter in the same way as upon the trial: ” Clever v. Hilberry, 116 Pa. 431. We are relieved from the necessity of discussing the question whether this rule applies to the case in hand, for the defendant’s counsel frankly concede that they make no such claim. If that rule does not apply, and we agree with counsel on both sides that it does not, it was error to admit those parts of the deposition of Judge Reed in which the witness recited the facts narrated to him by the defendant. Thereby the fact that the defendant declared to his counsel that his son had forged his name to the note became lodged in the minds of the jurors and it would be difficult to dislodge it. A party toan action or a defendant in a judgment, which he means to contest, cannot make evidence for himself in that way. And although the jurors were told to consider the fact only as an excuse for the defendant’s delay, the error was not made harmless, because proof of that fact was not admissible even for that purpose. We would not reverse if the evidence had been confined strictly within the limits heretofore suggested, but because it was not we are compelled to say that this assignment of error is well founded. The objections to the kind of testimony are very forcibly stated in Clever v. Hilberry, supra, and we need not repeat them.

12. The plaintiff opened the door to the admission of the evidence complained of in the thirteenth assignment by asking and receiving a negative answer to the question put by his counsel to sheriff Stetzler, a witness called by him: “ State whether or not Martin Castner made any allegation at that time ’’ — June, 1895, the time of the levy — “ regarding the note, or that judgment being a forgery or anything of that kind.” If the testimony introduced by the plaintiff was relevant, it was competent for the defendant to contradict it. If it was irrelevant, still the plaintiff is not in a position to complain of the admission of evidence to contradict it: Schriver v. Eckenrode, 1 Penny. 55.

13. One of the rules laid down in Travis v. Brown, 43 Pa. 9, is: “ 1. That evidence touching the genuineness of a paper in suit may be corroborated by a comparison, to be made by the jury, between that paper and other well authenticated writings of the same party.” The Act of May 15, 1895, P. L. 69, changed the law as declared in Travis v. Brown by making it competent for experts to make such comparison, but in nowise changed the law as to the introduction of other well authenticated writings of the same party for the purpose of comparison to be made by the jury. On the contrary, it expressly declares that “ the final determination as to whether any particular handwriting is genuine or simulated shall remain, as heretofore, a question for the jury on all the evidence submitted.” The signature to the paper offered by the defendant (twenty-second assignment) was sufficiently proved; it was made in 1890, two years before the date of the note in question, and hence was not made with this litigation in view. The fact that the name “ Martin ” was written correctly and not “ Martion ” as in the note in controversy, neither destroyed nor lessened its value as a test or standard with which to compare the signature in dispute. The counsel for the plaintiff, in further support of this assignment, say that they do not claim that this signature to the note in controversy bears any resemblance to the ordinary signature of Martin Castner. But the defendant could not be expected to anticipate that the plaintiff would make such admission. Even if it had been solemnly made and put on the record, the error was, not in admitting proof of a fact that harmed the plaintiff, but in taking up time to prove a fact that he admitted. This would not be a ground for reversal and putting the parties to the expense of another trial.

14. To authorize the admission of the writing offered as a test or standard, nothing short of evidence by a person who saw the party write the paper, or of an admission by such party of its being genuine, or evidence of equal authority, is sufficient: Baker v. Haines, 6 Whart. 283. This rule has been adhered to in later cases (Cohen v. Teller, 93 Pa. 123), and was not changed by the act of 1895. The case of Sweigart v. Richards, 8 Pa. 436, is not an exception; it simply decides that certain evidence is of “ equal authority.” Under the act of 1895, the document or writing offered for purpose of comparison must be “admitted to be genuine,” or “proven to the satisfaction of the judge to be genuine.” The execution of the test paper offered by the plaintiff in this case was seriously in conflict. Martin Castner denied it and the witness called to prove it was contradicted by proof of his subsequent declarations, and other testimony. Even according to his testimony it is more probable that the handwriting, in a physical sense, was that of J. P. Castner than that it was that of Martin Castner. He said, “ J. P. Castner held the pen and Martin Castner had his hand on top of J. P. Castner’s hand.” The court first admitted the paper but afterwards reconsidered the matter, and upon the defendant’s motion struck it out, at the same time saying, amongst other things : “ The only evidence offered on the part of the plaintiff is that of Peter Walley taken by deposition, and it is of such an uncertain character that it leaves a doubt in our mind as to the paper being sufficiently proved.” Unquestionably it is the duty of the judge to require the same kind of proof as was required prior to the act of 1895; but if such proof is furnished and there is opposing testimony, his decision of the question of fact must ordinarily be accepted as conclusive, for the obvious reason that the credibility of the witnesses is an important factor, and of this he had better opportunity to judge than is afforded the appellate court. The paper in question was neither “ admitted to be genuine ” nor “ proven to the satisfaction of the judge to be genuine.” The statutory conditions- were not fulfilled. Taking into consideration the manner in which it was alleged to have been executed by Martin Castner, and the serious conflict of testimony as to whether it was executed in any manner, by him, it is not for us to say that the judge ought to have been satisfied with the proof and admitted the paper. Even according to the plaintiff’s showing, the paper had little, if any, more value as a test paper than if the signature had been written by J. P. Castner by Martin Castner’s direction, and it had less value than a letter press copy, which, in Cohen v. Teller, supra, was held to be inadmissible. The testimony of J. B. Flack, quoted in the twenty-fourth assignment, was based on this paper, and when it was ruled out nothing of any consequence in that testimony remained which was relevant to the issue. Therefore the court committed no error in striking it out, or in the instructions complained of in the thirtieth assignment.

The remaining questions relate to the charge of the court and the answers to the points.

15. As the issue stood when the case was tried, the burden of proof rested on the plaintiff, and it was incumbent on him to establish his allegation that the note in suit was signed by the defendant or by some one authorized by him : Sossong v. Rosar, supra ; Harris v. Harris, supra; Shrader v. U. S. Glass Co., 179 Pa. 623. In such a case as this, where the defense consists of a general denial of the plaintiff’s allegation, it is sufficiently accurate to say to the jury that the burden of proof is on the plaintiff throughout, and does not shift; especially when such instruction is accompanied by the explanatory statement that the weight of the evidence may shift from side to side in the progress of a trial, according to the nature and strength of the proofs offered in support dr denial of the main fact to be established, and the further instruction that if the jury find that the evidence preponderates in favor of the plaintiff it is their duty to render a verdict in his favor.

16. The instructions complained of in the twenty-seventh, twenty-eighth and twenty-ninth assignments of error, read without reference to the context, would seem to be open to the criticism that the question at issue was to be, or at least might be, determined by the jury from a comparison of the disputed signature with the signatures proved to be genuine^ and that alone. We feel quite sure that this was not what the learned judge meant, and looking at the charge as a whole it is probable that the jury did not so understand him. It must be conceded, however, that the expressions, especially in the twenty-eighth assignment, were unfortunate, and while, perhaps, the error, standing alone, is not sufficiently clear to require a reversal of the judgment, yet we deem it our duty to call attention to it in order that it may be avoided in the next trial.

17. The answer to the thirty-second assignment of error is twofold: first, the presumption against the defendant from his failure to call J. P. Castner is no stronger than that against the plaintiff from his failure to call him ; second, the court was justified in refusing to charge as a matter of law that there was a “ presumption ” against either. Under some circumstances the jury may draw an unfavorable inference against a party from the nonproduction of evidence, but it is an inference of fact, not a presumption of law: Wills v. Hardcastle, 19 Pa. Superior Ct. 525, and cases there cited.

18. In discussing other assignments of error we have incidentally passed upon the questions raised by the thirty-first, thirty-fourth and thirty-fifth assignments, and the thirty-third does not require discussion. It is sufficient to cite the case of Penna. Co. v. Franklin Fire Ins. Co., 181 Pa. 40, at p. 49.

19. The last assignment alleges error in the affirmance of the defendant’s sixth point, which was as follows : “ Under all the evidence in this case, if the jury do not believe the evidence of Mettie Castner that Martin Castner told her, or in her presence, that he had signed the Yeany note, the verdict must be for the defendant.” It would unduly extend this opinion, already too long, to attempt a recital and an analysis of the evidence introduced by the plaintiff, outside of that of Mettie Castner, tending to show that the defendant signed or authorized his name to be signed to the note in suit. Nor is it necessary to do so, for it is fully and accurately summarized in the judge’s charge. We therefore simply state our conclusion, reached after a thorough and careful examination of it, that it would be insufficient, standing by itself, to sustain a recovery in favor of the plaintiff upon a note alleged by the defendant to be a forgery. In other words, if Mettie Castner’s testimony bad not been introduced, or for any proper cause had been struck out, the court would have been compelled to give binding instructions for the defendant, if asked to do so. Such being the case, it was not error to affirm the point. The learned judge had already instructed the jury to give careful consideration to all the evidence, and that it was their duty to do so was recognized in the point. The effect of the affirmance of the point was not to withdraw any of it from their consideration, either in determining the main question or in deciding as to the veracity of Mettie Castner. It only directed them as to their verdict in the event that upon a consideration of all the evidence they should not believe Nettie Castner. We recognize the principle, stated by Mr. Justice Trun key in Ott v. Oyer’s Executrix, 106 Pa. 6, that “ the credit of a witness may be so shaken that a jury would not rely upon his testimony alone to establish a fact, and yet justly consider it with other testimony; ” but we are not convinced that the effect of the affirmance of this point was to direct or permit the jury to disregard it.

All the assignments of error, excepting the twelfth, twenty-eighth and twenty-ninth, are overruled, the judgment is reversed and a venire facias de novo awarded.