Thatcher v. Goff

11 La. 94

Opinion

Carleton, J.,

delivered the opinion of the court.

This suit is brought by attachment on a promissory note, drawn by James D. Goff & Co., payable to M'Manus & Page, who endorsed it to Eli Garner, by whom it was assigned to plaintiff. The defendants pleaded the general issue.

The cause was tried by the court, who decreed in favor of the plaintiff, and ordered the property attached, to be sold to satisfy the judgment.

A motion was afterwards made by defendants’ counsel for a new trial on four several grounds filed. Our attention has been principally drawn to the first, to wit: “ That there is not sufficient evidence to establish the signatures of the first endorsers on the instrument sued on.”

The judge overruled the application for a new trial, and the defendants appealed from the decree of the court.

The controversy turns mainly upon the sufficiency of the proof of the hand writing of the first endorsers on the note. There was only one witness examined, whose testimony is as follows: “ Samuel R. Winter, witness for the plaintiff, sworn, being shown the promissory note sued on and annexed to the petition, says that he has had occasion to see the signature of M‘Manus & Page to notes and accounts; witness has seen the signature of M'Manus & Page so seldom that he should not like to swear positively to it; he believes, however, the signature of M‘Manus & Page, as endorsers on said note, to be that of said firm.”

Cross-examined. “Witness never saw either of the firm of M'Manus & Page write or sign their names; he believes the signature, M'Manus & Page, on said note, to be written by M'Manus, from having understood that he always signed the name of the firm to notes and obligations; said firm are established at Clinton, Mississippi.” .

Where a witness testified, on being shown the note sued on, that he had seen the signature of the endorsers to notes and accounts, and believes the endorsement to be their signature f but has seen it so seldom that he cannot swearpo-sitively, having never seen either of them write. He believes the signature of the firm, on the note is by M., who, he learned, always signed the firm of M U P. $ and he has seen notes signed by the firm pass without dispute, have 'takrn°this endorsedSelf’ by them: _ Held, dence Vinsuffi-theendorsement6 . A witness tes. nature,*° "must party sign, ^or received letters, or paid bills, which were af-knowledged, w had some other equivalentmeans of knowledge de-from thedactCor signature t0 hls

Principal examination resumed. “Witness has been frequently in Clinton, and knows M'Manus and Page well'; he has had frequent occasions to see notes which passed as having been signed by M'Manus & Page, without dispute ; from this, he has no doubt that it is the signature of M‘Manus & Page, and he would have taken the note himself.”

We think this testimony insufficient to prove the signature of the first endorsers. It is a rule founded in good sense, not now to be shaken, that the witness testifying to a signature, must have seen the parly sign, or have received letters from him in a course of correspondence, or have paid bills according to his directions, which he afterwards accounted for, or should have had some other equivalent means of knowledge, as the basis of his conviction, derived directly from the act or acknowledgment of the pefson whose signature he professes to know. Chitty on Bills, page 621.

Though the witness stated that “he has had occasion to see the signature of M‘Manus & Page to notes and accounts,” yet in his cross-examination he declares that he has never seen them write.

He also stated that he had frequent occasion to see notes which passed as having been signed by M‘Manüs & Page, without dispute ; that is, that those among whom the notes cil'culated were never known to call the signatures in ques-lion. So that all the witness has disclosed may be traced to what was said or done' by third persons, and not to any knowledge derived to him, either from the act or acknowledg-merit of the endorsers themselves.

This view of the subject renders it unnecessary to notice any ot^el' point raised in the cause. We think the plaintiff has failed toestablish the signatures of the first endorsers by . . . . . ,, , legal and sufficient testimony, and that the court below erred in refusing a new trial.

. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; that ^is case remanded for a new trial, and that the appellee pay the costs of appeal.