Rose v. First National Bank

91 Mo. 399

• Court: Supreme Court of Missouri
• Decided: October 15, 1886
• Status: Published

Opinion

Black, J.

This was a.n action to recover a balance of two hundred dollars claimed to be due on plaintiff’s deposit account. The bank had paid and charged to his account a check for a like amount, purporting tobe signed by the plaintiff. Whether this check was genuine or a forgery was the issue tried.

For the defence, the cashier testified that he knew the plaintiff’s handwriting. He examined the disputed check and several other checks, then in evidence for other' purposes, and conceded to be genuine, and stated that the signatures to all of the checks were in the handwriting of the plaintiff; that they were all alike. On cross-examination, counsel for plaintiff placed before the witness the name of W. P. Rose, written upon two blank checks, concealing from his view the other portions of the checks, and asked him in whose handwriting these signatures were. Witness answered that if checks, signed as these were, were presented to the bank, he would pay them as Rose’s checks. Plaintiff, in rebuttal, called another person, who stated that he wrote the name of W. P. Rose on the blank checks, during the progress of the trial. Objections were made to the above cross-examination and examination in rebuttal.

Where there are other writings in the case, conceded; to be genuine, they may be used as standards of comparison, and the comparison may be made by the jury, with or without'the aid of experts. 1 Greenl. on Evid., sec. 578; State v. Scott, 45 Mo. 302; State v. Tompkins, 71 Mo. 614. But with us, such papers can only be used when no collateral issue can be raised concerning them. 1 Greenl. on Evid., [sec. 581; State v. Clinton, 67 Mo. 380. The signatures upon the blank checks were designed to, and did, present a collateral issue, and under the rule before stated, the witness should not have been questioned as to them, unless the rule is to be relaxed in favor of a cross-examination.

In Griffith v. Ivery, 11 A. & E. 322, the defendant produced witnesses who testified that they were acquainted with his handwriting, and believed the acceptance was not his. Plaintiff then offered to lay a paper, purporting to be signed by the defendant, before each witness, on cross-examination, and asked them, in turn, whether they believed the signature to be that of the defendant, for the purpose of testing their knowledge of his writing. It was ruled that the paper could not be shown to the witness, and with respect to this ruling, Coleridge, J., said: '“We must not allow papers which are not evidence in the cause, to be let in, for any purpose, whatever. It is said that this was offered merely for the purpose of trying the knowledge of the witness, but the inquiry would not stop there.”

In Doe dem. Perry v. Newton, 5 A. & E. 514, where the issue was as to the genuineness of a signature to a will, produced by the defendant, the plaintiff’s counsel, on cross-examination of one of defendant’s witnesses, put into his hand some letters which witness said he believed to be of the testator’s writing. On behalf of the plaintiff, it was proposed to submit the letters to the jury, that they might compare them with the disputed signature, and thereby judge both of its genuineness and of the credit due to the witness. The letters were not in evidence for any other purpose, and were excluded ; and this ruling was affirmed. See, also, Doe dem. Mudd v. Suckermore, 5 A. & E. 703.

In Massey v. Bank, 104 Ill. 327, the bank sned Massey on a note. For the bank, a witness testified that some years before he had seen Massey write, and. that it was his impression that the signature of the name of Massey to the note was in his handwriting. On cross-examination, defendant’s counsel handed the witness a paper having written on it the name “ H. E. Massey,” sixteen times, and asked the witness to point out the genuine signatures, if any there were. It was then contended that the evidence was proper on cross-examination, but the court held that the evidence was properly excluded.

Extrinsic signatures, offered to be used on cross-examination, were held to have been properly excluded in Bank v. Robert, 41 Mich. 710.

The rule which excludes extrinsic papers and signatures, is substantially the same in the direct and cross-examination, as will be seen from the foregoing authorities. Papers not a part of the case and not relevant, as evidence, to the other issues, are excluded mainly on the ground that, to admit such documents would lead to an indefinite number of collateral issues, and -would operate as a surprise upon the other party, who would not know what documents were to be produced, and, hence, could not be prepared to meet them. The reason of the rule applies to the cross-examination with as much force as to the direct examination. The signatures should have been excluded, whether used to test the witness as an expert, or to test his knowledge of the handwriting of the plaintiff.

We cannot say the evidence did no harm. The error was in the reception of evidence on the only disputed fact in the case, and the judgment must be reversed and the cause remanded. It is so ordered.

Norton, C. J., and Sherwood, J., absent. The other judges concur.