Clay v. Schwab

1 Mich. N.P. 168

• Court: Circuit Court of the 39th Circuit of Michigan
• Decided: April 15, 1870
• Status: Published

Opinion

The plaintiffs counsel requested the Court to charge the jury, among other things, as follows;

1. That under the pleadings, it is not material in this case whether or not fraud, deception, or falsehood was the means by which the signature of the defendant was obtained to the note note declared on, nor is it material if the defendant supposed he was signing a contract or any other instrument, and did not know at the time'that he was signing a note, but then was told, and believed he was signing some other agreement and not a note at all.

This request was refused by the Court.

2. That if the question of fraud, deception and falsehood in 'obtaining the signature of the defendant to the note were property in issue, if the note was not forged, it could not become material unless knowledge of such fraud, deception and falsehood were proved against the plaintiff before or at the time he purchased the said note, the same having been purchased by plaintiff before maturity of the note, unless he had such knowledge or information as would put a prudent man on inquiry.

This request was granted.

3. That obtaining the signature of the defendant to this negotiable promissory note by fraud, deception or falsehood is not forgery, such as will avoid this note in the hands of an innocent holder for value when purchased before maturity.

Refused.

4. That forgery, such as will avoid this note in the hands of plaintiff, must be a false making, alteration of, or addition to the same in some material point, and that such making, alteration or addition cannot be presumed but must be proved by defendant.

Granted.

The defendant’s coimsel requested the following charges, among others:

1. That if the signature to the note, though genuine, was not made to the instrument in the form it now appears, but to an instrumant different in any material respect, it is a forgery.

Granted by the Court.

2 That if the signature of the defendant was obtained from him fraudulently, by covering over the body of the note with another and materially different instrument, with gum or otherwise, so as to conceal the body of the note and make it appear another and different instrument that he was signing, and the defendant was led to believe, by the appearance, of the paper, and the fraudulent statements of the payee at the time, that he was signing such other instrument and not a note, and such other instrument was subsequently removed, so as to make the signature apply to the note, it is a forgery, and the plaintiff cannot recover.

3. That if the defendant was unable to read the instrument which he signed, and the payee obtained his signature by deceit and fraud, by falsely pretending to read the same to him, and reading it not as a note but as another and different contract, and the defendant was thereby deceived, the instrument is a forgery, and plaintiff cannot recover.

4. That although fraud alone in obtaining the note would not avoid it in the hands of an innocent, holder, yet if the fraud and deceit be such as to make it amount to a forgery, then the plaintiff cannot recver.

5. That if the insrument, though signed by defendant, was not signed with any intention of making a promissory note, or promising to pay according to the terms of such note, but with the intention and understanding that he was signing another and totally different instrument, and his .signature was procured by the payee of the note by means of artfully and designedly deceiving him as to the character and terms of the instrument he was signing, for the purpose of defrauding him, the defendant not being guilty of any want of care in* the matter, the instrument is a forgery.

6. That forgery does not consist alone in the counterfeiting or false making of a signature, but may be perpetrated by the alteration of a genuine instrument, or by deceitfully and fraudulently obtaining the signature of a party to an instrument of which has no knowledge and no intention of signing.

7. That if the note was signed by the defendant, but at the time it was signed had preceding and above it on the same paper, and so connected as to make the whole appear to the defendant as one instrument, and if the terms of such preced' ing contract were such as, taken with the note, would alter its effect, and the defendant did not intend to sign a note alone, and such preceding contract was subsequently cut off without the defendant’s consent, it is a forgery.

Verdict for the defendant.