Dever v. Silver

³⁵⁶ Pattison, J. delivered the opinion of the Court. The appeal in this case is from a judgment recovered hy the appellee against the appellant, as executrix of Sylvester A. Silver, deceased, upon the following note, dated October 10th, 1914: “Pour months after date I promise to pay to the order of Howard O. Silver three thousand dollars. Value received. “Sylvester A. Silver. (Seal)” The suit thereon was instituted on the 5th day of December, 1917.

As originally filed, the declaration consisted of the common counts only, hut on the 22nd day of April, 1918, it was amended by striking out those counts and inserting in lieu thereof a special count upon said note. The defendant on May 17th, 1918, filed her plea thereto alleging therein: “That the writing obligatory in the plaintiff’s amended declaration mentioned is not the deed of the defendant’s testator.” She thereafter filed in addition thereto the two following pleas: “2. That there never was any value or consideration for the execution and delivery or payment by the defendant’s testator of the said alleged writing obligatory in the plaintiff’s amended declaration mentioned. “3. That after the execution and delivery of the said alleged writing obligatory in the plaintiff’s amended declaration mentioned the same was, without the consent 'of the defendant’s testator, materially altered— that is to say, by adding after the signature thereof a seal or a scroll containing the word ‘seal.’ ” These pleas of the defendant were traversed by the plaintiff and a joinder of issue short thereon was entered upon the docket.

The case was then tried upon the issues joined and a verdict was rendered for the plaintiff for the sum of ³⁵⁷ $3,718.50, upon which a judgment was entered in favor of the plaintiff for said amount. The only exception before us is to the action of the Court in refusing to grant the defendant’s prayer asking that the ease be taken from the jury because of a want of legally sufficient evidence entitling the plaintiff to recover. Harry Ames Silver, a brother of both the plaintiff and defendant, who was- shown the note and the signature thereto-, testified that the signature was his father’s, that in it he recognized his father’s handwriting. He was then asked, “What do you kno-w, if anything, about the indebtedness existing between your father and your brother Howard?

A. Well, I knew it for the last twenty years that my brother loaned my father money to- help put a house and barn there. Q’. You say that you know about your father’s indebtedness to your bro-tber? A. I kno-wed it for the last twenty years.

I saw1 the notes myself, that he gave to my brother. Q. The original note you are talking about? A. The original notes that he gave to him for the money he had loaned him.” J. Clinton Watts, an acquaintance of Dr. Silver, who was shown the note upo-n which this action was brought, testified that “he thought the said note had been made out in his office, and that he had seen it before Mr. Silver signed it; and that the seal was p-laced upon said note, in his presence, in his office when it was made out and before it was signed by Mr. Silver; that the seal was placed npo-n the said note at his suggestion; that Dr..Silver stopped in his office one day and told him that he had a claim against his father and ihat he thought he would get a new note fo-r it; that they got talking about bis father’s age, and witness suggested to him that he get a new note under sea]; that after it was signed the Doctor stepped into his office one day and told him that he had the note signed and took him out and showed it to him.” Upon cross-examination he stated that the plaintiff “brought the note in one day and showed it to me- and said 'my father ³⁵⁸ signed this.1 He said, he met him in the Union Station and lie signed the note in the Union Station, and that is the last I know of it until the thing came up- for trial.” Daniel H. Carroll, when called as a witness for the defendant, testified that on January 9th, 1917, he was Deputy Register of Wills for Harford County; that on that day Dr. Silver came to Belair with the witness Watts and filed the note as a claim against the estate of Sylvester A. Silver, deceased, and witness stamped it in the name of the Register of Wills, as a properly proven claim. He testified at this time that '“there was not a seal upon the said note.” Joseph S. Goldsmith, one of the attorneys of the defendant, testified that Mr. Owens, counsel for the plaintiff, stated when he asked permission of the Court to amend his declaration that when he drafted the original declaration he did not notice any seal upon thp note and that “'he then saw there was a seal upon it, and he desired to amend the declaration so as to make it applicable to a scaled instrument.” The defendant, Susie R. Dever, testified that her father at the time of his death, Hovember loth, 1916, owned a farm in Harford County, on which he lived; that he was eighty-four years of age when the note was signed; and that for several months immediately preceding that day, he had been in Baltimore, and at four o’clock on that day, he left Union Station to attend the funeral of a sister in Harford County. ‘“The witness was then asked whether she had had, since the death of her father, any conversation with the plaintiff in reference to the promissory note on account of which this suit was instituted.” The witness stated that she met the plaintiff on Hovember 21st- or 22nd, 1916, five or six days after her father’s death, at the Second National Bank of Baltimore.

She had gone there to investigate the note, as she said, and while there saw her brother, the plaintiff. She spoke to him and a conversation followed, most of which we will not repeat, as we think it can serve no good purpose in doing so. But in this conversation she told him she was ³⁵⁹ there on her father’s business'; that he sent her1 “to investigate that note.” She said, “you told papa that you had de1posited the note in the Second Rational jBank as collateral and he sent me here after it. The matter of fact and the truth of it is you have not done it, as I have found out.” The plaintiff then told her that she knew1 that his father owed him that money and witness told him that he, her father, did not owe it and that he was not going to get it, and asked him why he had not come out in the open when he got his father1 to sign the note, saving that, he did not know what he was signing, and if he had he would never have signed it.

The plaintiff then asked her how she knew, as she was not there, and she said, “Ho, I was not there, hut he told me how and where and all about it, how it was signed and I can believe him.” She further testified that he said to her that he had the note and would turn it over to her, as executrix of his father, but she said, “Ho, you will file and prove that note through the Orphans’ Court in Belair.” Harry Silver, a nephew1 and son-in-law of Sylvester A. Silver, testified that he escorted his uncle from the home of Harry Silver, the decedent’s son, to Union Station, and when he arrived at the station, he left him “in one of the corridors and went to bny a ticket, and after buying thei ticket, returned to him; he did not know that anybody acquainted with the testator was with him in Union Station; that he did not see the plaintiff in the station and had not seen him at all on that day; that after rejoining the testator, he went'to the train and left the city .for Aberdeen” to attend the funeral. J. Clinton Watts, when called in rebuttal, testified that he went with the plaintiff to Bel Air on the occasion that he filed the note with the Register of Wills of Harford County, and that he saw the note at that time, and that the seal was then on the note. The plaintiff testified that Watts was with him when he filed the note at Bel Air, and that “the said note was at that time in the shape in which it Was when exhibited in Court.” ³⁶⁰ He also testified that upon the occasion when ho met his sister in the banlc, he had the note