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The only exceptions taken by the defendant Osborn, were to the introduction on the trial of the writing executed by Magee and Naylor, on the settlement of the suit
brought on the building contract, and to a denial of a motion for a nonsuit. The first of these was clearly without merit.
The point now urged, that the court erred in receiving secondary evidence of the bond, for the reason that there was no sufficient proof of its loss, was not raised by any exception by either of the defendants. It is true that the objection was incidentally interposed, as a witness who drew the paper was being interrogated in respect to its contents, but no exception was taken to the decision of the judge overruling the objection. Indeed, the proof on the point (the sufficiency of which was for the judge, and not the jury) was ample and conclusive. The single question then is, was it error, so far as Osborn was concerned, to submit the case to the jury?
The nature and terms of the instrument in question were fully shown, and the only matter really in any doubt at the close of the case, was the genuineness of Osborn's signature to it. Naylor had contracted in July, 1854, to build a house for the plaintiff, Magee, and before the building was completed, one Butler filed a mechanic's lien upon it for materials furnished to Naylor. Upon the completion of the building, Naylor sued the plaintiff to recover the amount claimed to be due to him on the contract. This suit was settled in May, 1855, upon these terms: the plaintiff was to pay to Naylor $1,800 in full of his claim under the contract, and Naylor was to allow him either to retain $650 out of that sum (an amount supposed to be sufficient to cover the claim upon the lien of Butler), or else give to him his (Naylor's) bond, with sufficient security, to be approved by the plaintiff's attorney, in the penal sum of $1,200, conditioned to indemnify the plaintiff against all claims and demands upon such mechanic's lien, whether valid or not, or any suit or proceeding thereon, or by reason thereof, and against all expenses of defending any such claim or demand, and any sum recovered by reason thereof. Naylor elected to give the bond of indemnity. Shortly afterwards, the plaintiff's attorney paid to Mr. Parsons, the attorney of Naylor, and who managed the business for him, the $1,800, and received the bond from Parsons
in conformity with the terms of the settlement, subsequently delivering it to the plaintiff. It was on this indemnity bond, shown to have been afterwards lost, the action was brought in January, 1863, after Butler had obtained a judgment establishing his lien, and the plaintiff had been compelled to pay over $800 in satisfaction and discharge of such judgment. That the instrument, when delivered to the plaintiff, purported to be signed by Naylor, Osborn and Calrow, was proved beyond dispute. Parsons, who had prepared it for execution, testified distinctly to the fact, and so did the plaintiff, who had it in his possession until called to produce it on the Butler lien trial.
The origin of the bond, its contents, its delivery to the plaintiff, and the fact that when delivered it purported to be signed by Naylor, Osborn and Calrow, were thus clearly established. That Naylor executed it was not in doubt by the proof, and the single open question left was, whether what purported to be the signature of Osborn was, in fact, his. Osborn, who had, in his answer, simply interposed a general denial of the allegations of the complaint, set up, on the trial, that his brother-in-law, Naylor, to whom he was, at the time, in the practice of lending his name on bonds and notes, had forged his name to the bond, although there was not the faintest evidence tending to such a conclusion. Parsons, the attorney who arranged the settlement with Magee on behalf of Naylor, had drafted the bond, but it was not signed in his presence. It was in his hands, however, after its execution, and he had full opportunity for examining it before passing it over to the plaintiff's attorney when the settlement was concluded. On the question of the signature attributed to Osborn being genuine, he testified in substance (referring to about the period of the delivery of the bond to plaintiff, which was eight years prior to the trial) that Osborn was at his office and executed one or more papers on several occasions in behalf of Naylor; that he saw him write on one or more of those occasions; that he became acquainted to that extent with his signature at that time; that he did know the handwriting of Osborn, and recognized the bond in question
as being signed by him; recognized it at the time as a genuine instrument. On cross-examination he said, that he could not positively state that he had ever seen Osborn write three times; that he thought he should know his signature if he saw it; was not an expert in signatures; if there was a good imitation he should call it his, and so anybody's else; that he did not know that he was sufficiently familiar with his (Osborn's) handwriting to discriminate between a genuine and a tolerably good imitation of the signature.
Osborn himself subsequently was a witness in his own behalf. He did not deny positively, but only inferentially, his signing the instrument. He claimed to have executed but five bonds in behalf of Naylor; four of which he exhibited a memorandum of, and the other, of which he had no memorandum, he thought was a bail bond he had signed at Parson's office, in a suit against Naylor brought by one McArdle. He stated that about a month before the present suit was brought, Magee, the plaintiff, called upon him in relation to the bond, when he told him that he never signed any such bond; had no knowledge of it; and had never heard of it before; but of this interview Magee gave a different version. Osborn, he said, stated that he had signed a number of bonds for Naylor, but he did not then recollect of having signed one for Magee, and that he did not deny positively that he had executed the bond in question.
Naylor, also, who had interposed the same defense, by answer, as his co-defendant, Osborn, was a witness on his own part. He did not deny the execution of the bond, nor was he inquired of by Osborn in regard to it.
It appeared, furthermore, from the testimony of Osborn, that Naylor, Calrow and himself were brothers-in-law, and that at the time the bond was alleged to have been given, he was in the habit of lending Naylor money, and the use of his name by indorsements.
Upon this presentation of the case, the judge was asked by the counsel for Osborn to nonsuit the plaintiff, alleging, as a ground of the motion, that there was no sufficient evidence of the genuineness of his signature to the bond. The nonsuit
was refused (Osborn excepting), and the judge submitted the case to the jury, under a charge to which no objection was made. The legal question, therefore, raised by the exception was, not whether the evidence of the genuineness of the defendant's signature was more or less conclusive, but whether it was so weak, inconclusive, and unsafe as to require the judge to withhold the cause altogether from the jury.
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The only exceptions taken by the defendant Osborn, were to the introduction on the trial of the writing executed by Magee and Naylor, on the settlement of the suit
brought on the building contract, and to a denial of a motion for a nonsuit. The first of these was clearly without merit.
The point now urged, that the court erred in receiving secondary evidence of the bond, for the reason that there was no sufficient proof of its loss, was not raised by any exception by either of the defendants. It is true that the objection was incidentally interposed, as a witness who drew the paper was being interrogated in respect to its contents, but no exception was taken to the decision of the judge overruling the objection. Indeed, the proof on the point (the sufficiency of which was for the judge, and not the jury) was ample and conclusive. The single question then is, was it error, so far as Osborn was concerned, to submit the case to the jury?
The nature and terms of the instrument in question were fully shown, and the only matter really in any doubt at the close of the case, was the genuineness of Osborn's signature to it. Naylor had contracted in July, 1854, to build a house for the plaintiff, Magee, and before the building was completed, one Butler filed a mechanic's lien upon it for materials furnished to Naylor. Upon the completion of the building, Naylor sued the plaintiff to recover the amount claimed to be due to him on the contract. This suit was settled in May, 1855, upon these terms: the plaintiff was to pay to Naylor $1,800 in full of his claim under the contract, and Naylor was to allow him either to retain $650 out of that sum (an amount supposed to be sufficient to cover the claim upon the lien of Butler), or else give to him his (Naylor's) bond, with sufficient security, to be approved by the plaintiff's attorney, in the penal sum of $1,200, conditioned to indemnify the plaintiff against all claims and demands upon such mechanic's lien, whether valid or not, or any suit or proceeding thereon, or by reason thereof, and against all expenses of defending any such claim or demand, and any sum recovered by reason thereof. Naylor elected to give the bond of indemnity. Shortly afterwards, the plaintiff's attorney paid to Mr. Parsons, the attorney of Naylor, and who managed the business for him, the $1,800, and received the bond from Parsons
in conformity with the terms of the settlement, subsequently delivering it to the plaintiff. It was on this indemnity bond, shown to have been afterwards lost, the action was brought in January, 1863, after Butler had obtained a judgment establishing his lien, and the plaintiff had been compelled to pay over $800 in satisfaction and discharge of such judgment. That the instrument, when delivered to the plaintiff, purported to be signed by Naylor, Osborn and Calrow, was proved beyond dispute. Parsons, who had prepared it for execution, testified distinctly to the fact, and so did the plaintiff, who had it in his possession until called to produce it on the Butler lien trial.
The origin of the bond, its contents, its delivery to the plaintiff, and the fact that when delivered it purported to be signed by Naylor, Osborn and Calrow, were thus clearly established. That Naylor executed it was not in doubt by the proof, and the single open question left was, whether what purported to be the signature of Osborn was, in fact, his. Osborn, who had, in his answer, simply interposed a general denial of the allegations of the complaint, set up, on the trial, that his brother-in-law, Naylor, to whom he was, at the time, in the practice of lending his name on bonds and notes, had forged his name to the bond, although there was not the faintest evidence tending to such a conclusion. Parsons, the attorney who arranged the settlement with Magee on behalf of Naylor, had drafted the bond, but it was not signed in his presence. It was in his hands, however, after its execution, and he had full opportunity for examining it before passing it over to the plaintiff's attorney when the settlement was concluded. On the question of the signature attributed to Osborn being genuine, he testified in substance (referring to about the period of the delivery of the bond to plaintiff, which was eight years prior to the trial) that Osborn was at his office and executed one or more papers on several occasions in behalf of Naylor; that he saw him write on one or more of those occasions; that he became acquainted to that extent with his signature at that time; that he did know the handwriting of Osborn, and recognized the bond in question
as being signed by him; recognized it at the time as a genuine instrument. On cross-examination he said, that he could not positively state that he had ever seen Osborn write three times; that he thought he should know his signature if he saw it; was not an expert in signatures; if there was a good imitation he should call it his, and so anybody's else; that he did not know that he was sufficiently familiar with his (Osborn's) handwriting to discriminate between a genuine and a tolerably good imitation of the signature.
Osborn himself subsequently was a witness in his own behalf. He did not deny positively, but only inferentially, his signing the instrument. He claimed to have executed but five bonds in behalf of Naylor; four of which he exhibited a memorandum of, and the other, of which he had no memorandum, he thought was a bail bond he had signed at Parson's office, in a suit against Naylor brought by one McArdle. He stated that about a month before the present suit was brought, Magee, the plaintiff, called upon him in relation to the bond, when he told him that he never signed any such bond; had no knowledge of it; and had never heard of it before; but of this interview Magee gave a different version. Osborn, he said, stated that he had signed a number of bonds for Naylor, but he did not then recollect of having signed one for Magee, and that he did not deny positively that he had executed the bond in question.
Naylor, also, who had interposed the same defense, by answer, as his co-defendant, Osborn, was a witness on his own part. He did not deny the execution of the bond, nor was he inquired of by Osborn in regard to it.
It appeared, furthermore, from the testimony of Osborn, that Naylor, Calrow and himself were brothers-in-law, and that at the time the bond was alleged to have been given, he was in the habit of lending Naylor money, and the use of his name by indorsements.
Upon this presentation of the case, the judge was asked by the counsel for Osborn to nonsuit the plaintiff, alleging, as a ground of the motion, that there was no sufficient evidence of the genuineness of his signature to the bond. The nonsuit
was refused (Osborn excepting), and the judge submitted the case to the jury, under a charge to which no objection was made. The legal question, therefore, raised by the exception was, not whether the evidence of the genuineness of the defendant's signature was more or less conclusive, but whether it was so weak, inconclusive, and unsafe as to require the judge to withhold the cause altogether from the jury. On this point I am very clearly of the opinion that the judge did not err, but that, on the contrary, it would have been error to have granted the nonsuit. There was certainly evidence of a competent nature tending to prove that the signature was in the handwriting of the defendant, and there was no fact or circumstance to lead to an opposite conclusion, except the denial by Osborn himself, in a qualified way, eight years afterwards, that he had ever signed the instrument. Parsons, who had seen the defendant write on one or more occasions — who had the bond in his possession purporting to have his signature to it — who testified that he knew the defendant's handwriting at the time, and thought he should know it at any time if he saw it, swore that he recognized the bond, whilst in his hands, as a genuine instrument, as being signed by him (Osborn), Calrow and Naylor, with the handwriting of all of whom he had more or less acquaintance. This was quite enough, apart from anything else in the case, to carry it to the jury on the only really debatable question, viz., the genuineness of what purported to be Osborn's signature.
The witness had shown himself competent to give an opinion as to the genuineness of the signature or writing in dispute. "It is an established rule," says Phillipps, "that if the witness has seen the person write, he will be competent to speak to his handwriting." (1 Phil. Ev., 484.) Parsons had seen the defendant write on one or more occasions about the time of the alleged execution of the bond in suit, and in that way and to that extent, as he stated, he became acquainted with his signature. When he testified that he knew the handwriting of Osborn, and recognized the bond as being signed by him, and as a genuine instrument, it was, in substance, expressing the opinion that what purported to be
Osborn's signature was genuine. The degree of weight his testimony deserved (considering what he said on his cross-examination in regard to his inabilty to discriminate between a genuine and tolerably good imitation of the defendant's signature, and the opportunity he had of inspecting the writing in dispute) was a question for the jury and not the court. At all events, upon the evidence, it would have been error to have excluded from the consideration of the jury the question whether the signature attributed to the defendant was or was not genuine.
The defendant Osborn then interposed no valid exception. It was not error, so far as he was concerned, to submit the case to the jury. But the General Term thought otherwise, and on appeal from the judgment against him, reversed the same and ordered a new trial. This reversal must have proceeded wholly upon the ground that the judge erroneously refused the nonsuit, and not that the court differed with the jury as to conclusions of fact. The question whether the judgment should have been reversed on the facts was not before the court. No motion for a new trial on a case or exceptions was made at Special Term; but the defendant appealed from the judgment directly to the General Term. Where the trial is by jury, the motion for a new trial upon the law and the fact must be made and decided in the first instance at Special Term, and the Code, in such case, only authorizes an appeal upon the law to be taken directly to the General Term from a judgment. (Code, §§ 265, 348.) The General Term was not then in a position to review the case upon the evidence, and sustain or set aside the judgment, and grant a new trial, as it might concur or non-concur with the jury as to the facts established. We are not to intend, therefore, that the reversal was on questions of fact.
I am of the opinion that there was no error of law committed on the trial which justified the reversal of the judgment. The order of the General Term granting a new trial should be reversed, and the judgment of the Special Term affirmed.