Eborn v. Zimpelman

47 Tex. 503

• Court: Texas Supreme Court
• Decided: July 1, 1877
• Status: Published

Opinion

Gould, Associate Justice.

In October, 1871, William. Eborn of North Carolina presented to Zimpelman, the administrator of the estate of his brother, Thomas Eborn, (who at the time of his death, early in 1871, was, and for many years had been, a citizen of Austin, Texas,) a claim duly authenticated, on the following instruments:

“Borrowed and received from William Eborn nine hundred dollars, which I promise to return when called for, with interest.

“ February 3,1846.

“ (Signed)

Thos. Eborn.”

“ Received of William Eborn six thousand five hundred dollars, which I promise to invest in lands, or return the same when called for, with interest.

“ May 14,1846.

The affidavit authenticating these instruments also claimed the further sum of $400, with interest thereon, from April 20,1846, for which, it was stated, Thomas Eborn had also given a note similar in terms to the instruments set out, but which had been lost. Zimpelman, the administrator, rejected the claim on the ground that it was barred by the statute of limitations; and this suit was brought to have the claim established.

The petition alleges that in 1846, when Thomas Eborn was desirous of removing from North .Carolina to the West, the petitioner advanced him the sums of money specified in the claim, on the understanding that Thomas would invest in lands for petitioner, and, in default of doing so, return the same, with interest thereon, when called for; and that “soon after the receipt of the last-mentioned sum, the said Thomas Eborn left the State of North Carolina, and was not heard from thereafter by any of his relatives or friends until some time in the early part of the, year 1870, when petitioner received a letter” from Tilomas requesting him to come to Austin, Texas. In an amended petition, besides claiming that the instruments sued on established a trust, that on failure to invest in lands the money was due on demand,, and that demand could not be made because plaintiff did not know where his brother was until about one year before Ms death, it was further alleged that on the 1st day of January, 1871, Thomas Eborn acknowledged in writing his obligation to pay plaintiff the money, and promised to pay the same. The letter wMch was offered in evidence under the last allegation is as follows:

“Austin, January 1, 1871.

“ Dear Brother : I am bad off, and want you to come to Austin city right away and take charge. I have got property in Austin to pay you for the money you let me have, and the money uncle Tom paid me for you. Come at once ; don’t put it off. Have been looking for you some time. At my death all I have is yours.

Thomas Eborn.”

The original answer of the administrator set up the defense of limitations, and also contained a plea of non est factum, signed by the attorney for the administrator, and verified by the affidavit of one Lawrence, claiming to be the “ agent of the parties interested in the estate.” A general exception to tins plea of non est factum was sustained. Afterwards one McG-ilbry Barrow petitioned the court to be permitted to defend the suit as codefendant with thé administrator, representing that he was brother of the half-blood and interested in the estate.as heir; and was permitted by the court to file another plea of non est factum, embracing also the letter of January 1st, 1871, in which plea it was alleged that the instruments and letter were all in the handwriting of William Eborn. The plaintiff excepted to this action of the court, and to this last plea of non est factum. On the trial the court instructed the jury that the defense of limitations must prevail unless the debt had been acknowledged, and that if they found that the letter of January 1st, 1871, was not genuine, they need inquire no further. If, however, they found that letter to be genuine, they were further to pass upon the genuineness of the original instruments of 1846.

The verdict of the jury was for the defendant, and they further found “that the letter dated January 1, 1871, was not, written and .signed by Thomas Eborn.”

His motion for new trial being overruled, the plaintiff appealed, and his assignments of error and bills of exceptions present 'quíte, a number of questions, which will be considered without reference to the order in which they have been assigned and argued.

1.. The claim as.'presented was a moneyed demand, barred upon its face. ’ ’ The nine hundred dollars borrowed to be returned “ when called for,” “ created a cause of action from its date, and against it the statute runs from that time.” (Cook v. Cook, 19 Tex., 436.) The receipt, or second instrument, is like t¡he receipt which was before the court in Mitchell v. McLemore, 9 Tex., 151. In that case the receipt was for money to be invested in paying Government fees for Texas' scrip, placed in the party’s hands for location, and it was held that if, after the lapse of a reasonable time, the agent had failed to apply the money as required, he was in defaidt, and the statute commenced to run without demand. v It was held," further, that even if a demand was necessary", “the plaintiff should have made it within time to have brought liis suit before the statute had interposed a bar from the time .the default occurred.”

After the lapse of a reasonable time to invest in lands, the money became due without demand; and even if demand were necessary, four years, the ordinary period of limitation tp suits on,written instruments, was long enough to allow for its.being made. Regarding Mitchell v. McLemore as a case in point,-and following that case and Wingate v. Wingate, 11 Tex., 430, we hold that the claim as presented, and as sued on, was not an express trust, but was an ordinary moneyed demand, barred by limitation, unless there was a sufficient acknowledgment to support the action.

The averments of the petition, that Thomas Eborn left soon after receiving the last sum of money named, and that his whereabouts were not known until 1870, were not sufficient to make out such a case of fraud as constitutes an exception to the statute of limitations. There is no express charge of fraud, nor is it alleged that any efforts were made to ascertain his whereabouts, nor is it shown that such efforts would have been unavailing.

In the case of Munson v. Hallowell, the doctrine that the fraudulent concealment of the existence of a cause of action would prevent the running of the statute, was applied to the fraudulent removal and concealment of the subject-matter of litigation; but we are.aware of no decision that the mere removal of the debtor without communicating to his creditor his new domicile, amounts to such a fraud- as will stop the statute. The statutes of limitation of this State apply “ no less to a foreign than to a domestic claim,” and provide that “ no demand against any person who shall hereafter remove to this State, shall be barred by the statute of limitations of this State, until he shall have resided in this State for the space of twelve months.” (Paschal’s, Dig., arts. 4619, 4620.) This is the provision which the law makes for the benefit of the creditor in case of the removal of his debtor here from another State, and it is reasonable to assume that no further provision was, deemed necessary or intended. (See Hunt v. Ellison, 32 Ala., 173; Howell v. Hair, 15 Ala., 194.) The court did not err, then, in instructing the jury that if they found against the genuineness of the letter of January 1, 1871, they need inquire no further.

There was much and conflicting evidence as to the genuineness of this letter, and the other instruments sued on, and it is claimed that the court erred in excluding evidence offered by plaintiff, and in the admission of evidence offered by defendant.

2. It appears by bill of exceptions that the plaintiff offered to submit in evidence sundry paper writings, purporting to be signed by Thomas Eborn, which had been testified to by competent witnesses as being, in their opinion, in the handwriting of Thomas Eborn, that the jury might examine and compare the writings with the papers on which the suit is based;- which evidence was, on objection, excluded. The authorities cited by appellant do not maintain the admissibility, for such a purpose, of writings established only by the opinion of witnesses, or of any writings, unless “ found to be genuine,” or “ established by the most satisfactory evidence.” (Travis v. Brown, 43 Pa. St., 9; Lyon v. Lyman, 9 Conn., 55; Myers v. Toscan, 3 N. H., 47; Richardson v. Newcomb, 21 Pick., 315.)

In Commonwealth v. Eastman, 1 Cush., 217, the court say: “Nor can a paper proposed to be used as a standard be proved to be an original and a genuine signature, merely by the opinion of a witness that it is so; such opinion being derived solely from his general knowledge of the handwriting of the person whose signature it purported to be. The evidence resulting from a comparison of the disputed signature with other proved signatures is not regarded as evidence of the most satisfactory character, and by some most respectable tribunals is entirely rejected. In this commonwealth it is competent evidence; 'but the handwriting used as a standard must first be established by clear and undoubted proof; that is, either by direct evidence of the signature, or by some equivalent evidence; ” citing Richardson v. Newcomb, supra, and Moody v. Rowell, 17 Pick., 490.)

Mr. G-reenleaf favors the conclusion “ that such papers can be offered in evidence only when no collateral issue can be raised concerning them; which (he says) is only when the papers are conceded to be genuine, or are such as the other party is estopped to deny; or are papers belonging to the witness who was himself previously acquainted with the parly’s handwriting, and who exhibits them in confirmation and explanation of Ms testimony.” (1 Greenl. Ev., sec. 581.) It is very clear that under these authorities the writings offered in evidence were not sufficiently established, and were properly excluded.

" 3. In the course of the trial the defendant introduced the depositions of sundry witnesses in the State of Eorth Carolina, who testified that they knew the handwriting of William Eborn, but not that of Thomas Eborn. Attached to the interrogatories were photograpMc copies of the instruments charged to have been executed by Thomas Eborn in 1846, and these witnesses testified to their belief, that if the copies were exact, those instruments were in the handwriting of William Eborn. This evidence was objected to, but was admitted, and the question of its admissibility is fairly before us.

It was given in evidence by the artist who took the copies that, except as to color and size, they were exact reproductions of the originals, basmg that statement, he says, upon the representations of scientific men as to the instruments with which they are taken, and his own observations.

In support of the admissibility of such evidence, it is contended that the court will take judicial notice that the photographic process secures a mathematically exact reproduction of the original, and that, therefore, evidence as to the handwriting of such a copy, is as satisfactory as though it referred to the original. But certainly the exactness of the photographic copy of a writing depends on the instrument and materials used. Like a letter-press copy, it is a copy, and may be more or less imperfect. However superior to other copies, it is certainly a question of fact whether any particular photographic copy is exact or not, for “photographers do not always produce exact fac similes“As a general rule, in proportion as the media of evidence are multiplied, the chances of error or mistake are increased.” (Tome v. Parkersburg Branch R. R., 39 Md., 93.) Evidence as to the genuineness of a copy, however made, is, in its nature, less satisfactory than evidence as to the original. So it has been held that letter-press copies were not admissible as competent standards of comparison. (Commonwealth v. Eastman, 1 Cushing, 217; Commonwealth v. Jeffries, 7 Allen, 561.) Where, however, the question is as to the genuineness of a letter which cannot, after due effort, be produced, the letterpress copy may retain enough of its original character to be identified by a witness, and, if so, the evidence is admissible as secondary evidence. (Commonwealth v. Jeffries, supra.) So, in Leathers v. Salvor Wrecking Co., 2 Woods, 682, where the originals were archives of the Government and could not be produced, Judge Bradley, speaking of photographic copies which were admitted, says: “lío better evidence of their character and authenticity can he had than such a reproduction of them by the operation of natural agencies, and an authentication of their genuineness, in the usual way, by proof of handwriting.”

The evidence was spoken of as other secondary evidence —admissible because no better could be had. Luco et al. v. U. S., 23 Howard, is another case, (referred to by counsel.) It would seem that here, also, the originals were public archives, which could not be produced, and this, perhaps, was the reason that photographic copies appear to have been used without objection. However that may be, the question of the admissibility of such evidence does not appear to have been either made, discussed, or decided.

Marcy v. Barnes, 16 Gray, 163, is a case where magnified copies of genuine signatures of the defendant, and of the disputed signature, were submitted to the inspection of the jury. This, the court say, “is not dissimilar to the examination with a magnifying glass,” and is an additional and useful means of making comparisons between admitted signatures and one which is alleged to be only an imitation. So far from treating photographic copies as necessarily accurate, the court, in that ease, expressly say, that their accuracy is a question of fact “to be considered and determined by the jury.” Here, the enlarged photographic copies were used, it would seem, not as substitutes, but in addition to the originals. Certainly, a photographic likeness of an individual may be used for the purpose of identification, where no better evidence is to be had, (see Udderzook v. Commonwealth, 76 Pa., 352,) but it would scarcely be contended that the testimony of a witness who had only seen the photograph would be as satisfactory as if he had known the original.

Our conclusion is that photographic copies of instruments sued on can only be used as secondary evidence; that in this case no proper foundation was laid for the introduction of secondary evidence, and that the depositions in regard to the photographic copies were improperly admitted. It does not appear that any effort was made to procure the leave of the court or the consent of the opposite party to use the originals, nor does it appear that it was impracticable to procure the attendance of the witnesses, so that they might examine the originals. The issue as to the genuineness of the writings was one made and to be tried in the District Court of Travis county, where those writings were on file. It seems that there were witnesses in ¡North Carolina, whose testimony as to the handwriting was wanted, some by the plaintiff and. some by the defendant. The former procured his witnesses to visit Austin. In one instance, at least, the latter did the same. If there were other witnesses for defendant, whose attendance was not procured, that was the misfortune of appellee, but did not authorize the course pursued. If photographic copies of writings may be made useful as affording increased facilities for obtaining the testimony of distant witnesses as to handwriting, our opinion is, that until the Legislature sees fit to authorize their use for such a purpose, under proper precautions, the courts can only allow it where better evidence is not to be had; and that the mere fact that the witness is a resident of another State, and tire writings are on file in a court of this State, does not present such a case.

It is at least questionable whether witnesses who did not know the handwriting of Thos. Eborn, should have been allowed to give their opinion that these instruments were in the handwriting of "William Eborn. Ho authority has been cited for the admissibility of such evidence, and, in the absence of authority, it seems to us not within the rule which allows a witness who knows the handwriting of a party, to declare his belief as to the genuineness of an instrument purporting to be signed by him. Evidence that William Eborn, in fact, wrote the instruments, would clearly be competent, but it seems to us that to make the opinion or belief of witnesses not introduced as experts as to handwriting, admissible, they should know the handwriting of the purported signer of the instrument. For this additional reason, the evidence as to the photographic copies should have been excluded.

It thus appears that improper testimony was admitted; and, although that testimony was as to the genuineness of the instruments of 1846, and the case was disposed of (without passing upon that question) by finding that the letter of 1871 was not genuine, the two questions were so closely connected that we cannot say that this improper testimony did not operate to the prejudice of the plaintiff'. If the jury believed that William Eborn, the plaintiff, forged the original obligations, they would require but little evidence to convince them that the letter was also a forgery. As we cannot say that the improper evidence did not operate to appellant’s prejudice, this error entitles appellant to a reversal.

The question of the sufficiency of the plea of nan est factum is one on which the two members of the court who sit in this case have only been able to agree in part. We are agreed, that section 195 of the Probate Law of 1870 referred to proceedings on the probate side of the court, and not to ordinary suits in the District Court. We are further agreed, that, under articles 35 and 1442, Paschal’s Dig., the affidavit casting some suspicion on the instrument sued on, which must accompany the plea of non est factum of an administration, may be made by the agent or attorney of the administrator.

In a case where the genuineness of a note is questioned by the heirs, and where, as appears from the evidence to be the fact in this case, the administrator believes it genuine, and therefore, it may be inferred, declines to make an affidavit casting suspicion upon it, he might still be willing that the question should be investigated, and to allow the heir to make such affidavit as would raise the issue. If it appeared affirmatively that the affidavit was made with the assent of the administrator, as his agent, we think the plea would have been sufficiently verified. If, however, the administrator does not assent, it would not seem to us that the heir could come into the suit as a co-defendant, and take the conduct of its defense out of the hands of the administrator.

As the ease is to be reversed on other grounds, it is not necessary to decide whether, looking at the entire record, there was or was not error in the admission of the plea of non est factum.

The judgment is reversed and the cause remanded.

Reversed and remanded.

[Associate Justice Moore did not sit in this case.]