Opinion by
Mb. Justice Sterrett,
As set forth in its statement filed, the plaintiff’s claim consists of two items ; the first of which is for $200 with interest from March 28, 1890, and is based on the following facts : On November 23, 1889, the plaintiff bank discounted for Wm. C. Keller a note made by defendant to the order of and indorsed by said Keller for $200, at sixty days from said last mentioned date. When that note matured, January 25,1890, it was taken up by Keller who gave the bank in lieu thereof, a note of same time and amount, made and indorsed by same parties respectively. When that renewal note matured, it was duly protested for non-payment and notice thereof was given to Keller the indorser.
The second item of claim is for $550, with interest from April 19,1890, and is based on the following facts: On December 14, 1889, the bank discounted for said Keller a note of $650, made by him to the order of and indorsed by defendant at ninety days from said last mentioned date. This note, as well as the next hereinafter mentioned note, has upon the lower left face corner thereof the words, “ Credit the drawer,” “ Charles S. Wentzel,” indicating that the indorsement was [149]*149for the accommodation of the maker. When this note matured, March 17,1890, plaintiff bank surrendered it to Keller, receiving from him in lieu thereof $100 cash and a note for $550, at thirty days, made and indorsed by same parties. When this $550 renewal note matured, it was duly protested for non-payment, and notice thereof was given to defendant as indorser.
It will be observed that the first item of claim, $200, etc., is against defendant as maker of the note for that sum, while the second item of claim, $550, etc., is against him as indorser of the $550 note protested for non-payment, etc.
As to the first item of claim, the genuineness of the first mentioned $200 note was admitted by defendant, but he testified that his name as maker of the second or renewal note for $200 was a forgery. Assuming this to be true, it could not be doubted that Keller’s attempted renewal of the first note, by giving in lieu of it a forged note, was not payment of the first, and did not discharge defendant’s liability as maker of said note. That principle is well settled in Ritter v. Singmaster, 73 Pa. 400; West Phila. Bank v. Field, 143 Pa. 473. Defendant’s liability, as maker of the first note, was virtually conceded, and there was accordingly a verdict in plaintiff’s favor for $211.87, the amount of said note, with interest.
Defendant’s liability on the $650 note or the $550 renewal note was the main subject of contention in the court below, as it is here. It was claimed by the bank, that, as indorser of the $550 renewal note, duly protested for non-payment, etc., defendant was liable for the amount thereof with interest from April 19, 1890, the maturity thereof. Evidence was introduced, tending to prove that both $200 notes were made by defendant and that he indorsed the others. Keller, by whom the notes were negotiated, testified in substance that the names of both the maker and indorser of all the above mentioned notes, as well as others referred to in the testimony, were genuine signatures.
John M. Bertolet, the teller, and Frederick A. Rowland, cashier of the bank, were examined, and both testified, in substance, that after the $200 and $650 notes came into the bank’s possession they were shown to defendant, in their presence, and after examining them he admitted that his signatures as maker of the former and indorser of the latter were respec[150]*150tively genuine. Mr. Bertolet was asked: “ Do you recollect on one occasion that Charles'S. Wentzel came into bank and your showing him this original $200 note, and a note for $650, which is not here, made by Keller and indorsed by Wentzel, and asking him whether these were his signatures? A. Yes, sir; this seems to be the note I showed him at the time. Q. Did you show him the $650 note at the same time ? A. Yes, sir; I think I did; positive I did. Q. Are you positive you showed him two notes? A. Showed him two notes. Yes, sir; those which we had on hand at the time. Q. The other was for that amount ? A. The other was for $650, afterwards renewed for $550. Q. Who was the maker and indorser of that $650 note? A. Keller was the maker and Wentzel the indorser. Q. How did Wentzel happen to come into bank? A. I think he had a check cashed. I knew the gentleman and called Mr. Rowland’s attention to the matter. We decided then to show him the notes. As I spoke to Mr. Wentzel on the subject I found that he had indorsed for him and I showed the two notes to which he acknowledged his signature. Q. Did he examine them ? A. He examined them very closely. I gave him first the larger note, and while he was looking at that note I gave him also the $200 note. He after-wards went to the window and examined them closely, put on his glasses to make doubly sure of it. Q. What did he say? A. He said after I had asked him—he spoke in German to me—he said he had written these notes, these signatures were his.”
In all this, the witness was fully corroborated by the cashier, Mr. Rowland, who was present, saw what occurred and testified emphatically that defendant admitted the vsignatures, as maker of the one and indorser of the other note, were his. In the words of the witness: “ Mr. Wentzel examined them carefully, and in my presence, in my hearing, he answered that he had written the names.”
Again referring to defendant’s admissions, as to the genuineness of the signatures, etc., the notes were shown to the witness, Mr. Rowland, and he was asked to say whether he believed the signatures were in the handwriting of the defendant or not. This was objected to, and the court, refusing to sustain the objection, said: “ The witness having testified that he saw the [151]*151genuine signature of the defendant, admitted by the defendant to be genuine, he will be permitted now to give his opinion as to the genuineness of the signature in question, based upon his knowledge of the handwriting acquired in that form.” The two notes were then handed to the witness, and he thereupon testitified: “ I think they are Charles S. Wentzel’s signatures.”
The defendant was called as a witness, and admitted the genuineness of his signature as maker of the first $200 note, but he denied that he had indorsed either the $650 or the $550 note. He admitted that the $650 note was shown to and examined by him in the bank, as testified to by the cashier and teller, that the latter asked him if he had signed it, and he believed he did not deny that he had. He also testified that he then knew the indorsement was a forgery; and on the witness-stand he undertook to explain why he did not frankly say so to the bank officers when he was asked whether the indorsements were genuine or not. His conduct, in that regard, as testified by himself, was not what it should have been.
The case was submitted to the jury on the evidence above referred to, and other testimony including test papers containing signatures of defendant admitted to be genuine, with instructions to inquire and determine whether the indorsement of either the $650 or the $550 note was genuine. The verdict was in favor of plaintiff as to the first item of claim ; but, as to the second, the jury must have found that the indorsements were forged.
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Opinion by
Mb. Justice Sterrett,
As set forth in its statement filed, the plaintiff’s claim consists of two items ; the first of which is for $200 with interest from March 28, 1890, and is based on the following facts : On November 23, 1889, the plaintiff bank discounted for Wm. C. Keller a note made by defendant to the order of and indorsed by said Keller for $200, at sixty days from said last mentioned date. When that note matured, January 25,1890, it was taken up by Keller who gave the bank in lieu thereof, a note of same time and amount, made and indorsed by same parties respectively. When that renewal note matured, it was duly protested for non-payment and notice thereof was given to Keller the indorser.
The second item of claim is for $550, with interest from April 19,1890, and is based on the following facts: On December 14, 1889, the bank discounted for said Keller a note of $650, made by him to the order of and indorsed by defendant at ninety days from said last mentioned date. This note, as well as the next hereinafter mentioned note, has upon the lower left face corner thereof the words, “ Credit the drawer,” “ Charles S. Wentzel,” indicating that the indorsement was [149]*149for the accommodation of the maker. When this note matured, March 17,1890, plaintiff bank surrendered it to Keller, receiving from him in lieu thereof $100 cash and a note for $550, at thirty days, made and indorsed by same parties. When this $550 renewal note matured, it was duly protested for non-payment, and notice thereof was given to defendant as indorser.
It will be observed that the first item of claim, $200, etc., is against defendant as maker of the note for that sum, while the second item of claim, $550, etc., is against him as indorser of the $550 note protested for non-payment, etc.
As to the first item of claim, the genuineness of the first mentioned $200 note was admitted by defendant, but he testified that his name as maker of the second or renewal note for $200 was a forgery. Assuming this to be true, it could not be doubted that Keller’s attempted renewal of the first note, by giving in lieu of it a forged note, was not payment of the first, and did not discharge defendant’s liability as maker of said note. That principle is well settled in Ritter v. Singmaster, 73 Pa. 400; West Phila. Bank v. Field, 143 Pa. 473. Defendant’s liability, as maker of the first note, was virtually conceded, and there was accordingly a verdict in plaintiff’s favor for $211.87, the amount of said note, with interest.
Defendant’s liability on the $650 note or the $550 renewal note was the main subject of contention in the court below, as it is here. It was claimed by the bank, that, as indorser of the $550 renewal note, duly protested for non-payment, etc., defendant was liable for the amount thereof with interest from April 19, 1890, the maturity thereof. Evidence was introduced, tending to prove that both $200 notes were made by defendant and that he indorsed the others. Keller, by whom the notes were negotiated, testified in substance that the names of both the maker and indorser of all the above mentioned notes, as well as others referred to in the testimony, were genuine signatures.
John M. Bertolet, the teller, and Frederick A. Rowland, cashier of the bank, were examined, and both testified, in substance, that after the $200 and $650 notes came into the bank’s possession they were shown to defendant, in their presence, and after examining them he admitted that his signatures as maker of the former and indorser of the latter were respec[150]*150tively genuine. Mr. Bertolet was asked: “ Do you recollect on one occasion that Charles'S. Wentzel came into bank and your showing him this original $200 note, and a note for $650, which is not here, made by Keller and indorsed by Wentzel, and asking him whether these were his signatures? A. Yes, sir; this seems to be the note I showed him at the time. Q. Did you show him the $650 note at the same time ? A. Yes, sir; I think I did; positive I did. Q. Are you positive you showed him two notes? A. Showed him two notes. Yes, sir; those which we had on hand at the time. Q. The other was for that amount ? A. The other was for $650, afterwards renewed for $550. Q. Who was the maker and indorser of that $650 note? A. Keller was the maker and Wentzel the indorser. Q. How did Wentzel happen to come into bank? A. I think he had a check cashed. I knew the gentleman and called Mr. Rowland’s attention to the matter. We decided then to show him the notes. As I spoke to Mr. Wentzel on the subject I found that he had indorsed for him and I showed the two notes to which he acknowledged his signature. Q. Did he examine them ? A. He examined them very closely. I gave him first the larger note, and while he was looking at that note I gave him also the $200 note. He after-wards went to the window and examined them closely, put on his glasses to make doubly sure of it. Q. What did he say? A. He said after I had asked him—he spoke in German to me—he said he had written these notes, these signatures were his.”
In all this, the witness was fully corroborated by the cashier, Mr. Rowland, who was present, saw what occurred and testified emphatically that defendant admitted the vsignatures, as maker of the one and indorser of the other note, were his. In the words of the witness: “ Mr. Wentzel examined them carefully, and in my presence, in my hearing, he answered that he had written the names.”
Again referring to defendant’s admissions, as to the genuineness of the signatures, etc., the notes were shown to the witness, Mr. Rowland, and he was asked to say whether he believed the signatures were in the handwriting of the defendant or not. This was objected to, and the court, refusing to sustain the objection, said: “ The witness having testified that he saw the [151]*151genuine signature of the defendant, admitted by the defendant to be genuine, he will be permitted now to give his opinion as to the genuineness of the signature in question, based upon his knowledge of the handwriting acquired in that form.” The two notes were then handed to the witness, and he thereupon testitified: “ I think they are Charles S. Wentzel’s signatures.”
The defendant was called as a witness, and admitted the genuineness of his signature as maker of the first $200 note, but he denied that he had indorsed either the $650 or the $550 note. He admitted that the $650 note was shown to and examined by him in the bank, as testified to by the cashier and teller, that the latter asked him if he had signed it, and he believed he did not deny that he had. He also testified that he then knew the indorsement was a forgery; and on the witness-stand he undertook to explain why he did not frankly say so to the bank officers when he was asked whether the indorsements were genuine or not. His conduct, in that regard, as testified by himself, was not what it should have been.
The case was submitted to the jury on the evidence above referred to, and other testimony including test papers containing signatures of defendant admitted to be genuine, with instructions to inquire and determine whether the indorsement of either the $650 or the $550 note was genuine. The verdict was in favor of plaintiff as to the first item of claim ; but, as to the second, the jury must have found that the indorsements were forged.
The plaintiff complains that the learned court erred in its rulings on the questions of evidence referred to in the first three specifications of error, and in its answers to the points for charge recited in the 4th and 5th specifications. In order that the bearing of the matters thus complained of may more clearly appear, the main features of the evidence on which the case was submitted to the jury have been referred to at greater length than was perhaps necessary.
As to the rejection of the offer recited in the first specification, we are not convinced that there was any error. As expressed in the offer itself, it was made for the specific “ purpose of estopping the defendant from denying the signature.” We are unable to see that it was competent for that purpose. If the witnesses had such knowledge of defendant’s handwriting, [152]*152from having seen and examined signatures which, in their presence he admitted to be genuine, as would have enabled them to testify to his alleged indorsement of the $550 note, it doubtless would have been received for that purpose. In point of fact, the cashier of the bank was permitted to testify that in his opinion, based upon the knowledge he had, etc., the indorsements in question “ are Charles S. Wentzel’s signatures.” But the mere opinion of witnesses that the signatures were his, could not have the effect of estopping the defendant from denying that they were. Moreover, test papers, bearing signatures admitted to be his, were submitted to the jury, and it was their.duty to make the comparison, and draw therefrom such inference as was warranted.
For reasons given by the learned judge himself, we think he was warranted in striking out the evidence referred to in the 2d specification, and in rejecting plaintiff’s offer in rebuttal, recited in the 3d specification.
There was no error in refusing to affirm plaintiff’s second point, recited in the 4th specification. Aside from the reasons assigned by the learned judge for not affirming the point, we think it was rightly refused on other grounds. As to the item of claim referred to,- the action was against defendant as indorser. The $650 note was not protested for non-payment; and, of course, no recovery could be had against him as indorser of that note. Under the statement of claim filed, the bank was not entitled to a verdict for the $550 and interest, without proving to the satisfaction of the jury that the indorsement of the $550 note was made by defendant or by his authority. That note was duly protested, and the only question was whether the indorsement was genuine. The burden of proving that it was rested on the plaintiff.
Appellant has no just reason to complain of the learned judge’s answer to defendant’s second point, in which he was requested to charge: “ Even if the jury believe the evidence of John M. Bartolet and F. A. Rowland that the defendant admitted to them that he had signed the $650 note, dated December 14, 1889, they cannot find a verdict in favor of plaintiff for the $550 note, unless they believe that the defendant, Charles S. Wentzel, signed and indorsed said note for $550.”
Instead of affirming this point, the learned judge, in eon-[153]*153eluding his answer said: “ If the jury find that the $650 note was genuine, then there can be a recovery, notwithstanding they should find that the $550 note was a forgery.” If defendant had been the maker of the $650 note and it had been shown to be genuine, either by his admission or otherwise, the learned judge’s conclusion would be correct. But it is not pretended that he was the maker of that note. On the contrary, it is averred in the statement of claim that he indorsed it, and there is no evidence that it was protested for nonpayment, or that demand and notice of protest were waived by defendant.
It may be that there was a miscarriage of justice in this case, but we find nothing in the record that would warrant a reversal of the judgment. If the jury made a mistake in not finding the facts as they should have done, that is an error which we are powerless to correct.
Judgment affirmed.