Engel v. Schloss

Pattison, J., delivered the opinion of the Court. The appellant brought suit in the Court of Common Pleas of Baltimore City against the appellee under what is known as the Speedy Judgment Act (sec. 312 of Chapter 123 of the Acts of 1898) on a promissory note, dated the 11th day of December, 1916, for the sum of $5,000, payable to Benjamin Pressler three months after the date thereof, at the defendant’s place of business, corner of Paca, and Baltimore streets, Baltimore, Maryland, purporting to be signed by the defendant, and endorsed by Pressler to the appellant, Benjamin Engel, on the 2nd day of February, 1917. The declaration contained the usual common counts and a special count upon said note, xlttaehed to the declaration was the affidavit of the plaintiff required by the Act, and with it was filed the note sued on. The defendant pleaded (First) that he was never indebted as alleged, and -(Second) that he never promised as. alleged.

To these pleas ho made the affidavit required by the statute, in which he stated under ⁷⁴ “oath that he knows that the signature or name, ‘Michael Schloss,’ appearing on the paper or promissory note, filed with the declaration in the above entitled cause and purporting to he the signature of this defendant, was not written by or by the authority of this affiant, the defendant, and that said paper or promissory note was not signed by him or by his authority.” In the trial of the ease, which resulted in a verdict for the defendant, and upon which a judgment was entered, thirty-one exceptions were taken to the rulings of the Court upon the evidence, and one to its rulings upon the prayers. The plaintiff offered five prayers, designated as the “Second,” “Third,” “Fourth,” “Fifth” and “Sixth.” Of these the fifth was granted and the others were refused. The defendant offered six prayers. His second was refused and his first, third, fourth, fifth and sixth were granted.

The plaintiff’s second prayer asked the Court to instruct the jury “that the burden of proof is on the defendant to establish that the note sued on in this case was not signed by. him,” while his third prayer asked that the jury be instructed that if “their minds are in a state of equipoise as to whether Michael Schloss signed the note sued on, then the verdict must he for the plaintiff.” As we have said, the Court refused these prayers and granted the defendant’s fourth prayer, by which the jury were instructed that, “the burden of proof was upon the plaintiff to establish his case by a preponderance of evidence, and if the minds of the jury are in a state of equipoise, or even balance, then the verdict must he for the defendant.” At the trial the note sued on was produced by the plaintiff, and when shown to Benjamin P'ressler, he testified that he saw the defendant, Michael Schloss, sign his name thereto; that it was signed by Schloss at his place of business, corner of Paca and Baltimore streets, on the evening of November 6th, 1916, hut at the request of Schloss it was dated Decern ⁷⁵ her 11th, 1916: that at the time said note was signed and delivered to him, Sehloss likewise signed another note, also dated December lltli, 1916, for a like sum, payable to Pressler four months thereafter. This last note was delivered to Aaron Strauss as a pledge for the payment of an indebtedness owing by Pressler to him, and is referred to in the record as the “Strauss Note.” It, however, is not involved in this suit. Pressler testified that the note sued on was endorsed to Benjamin Engel, the plaintiff, on February 2nd ,1917, and for which Engel paid him $4,867.50. The plaintiff rested his case at the conclusion of Pressler’s testimony, and Michael Sehloss, when called as a witness in his own behalf, denied that he signed the note sued on and also denied the signing of the other note referred to, and further denied that Pressler was in his place of business on the evening of Novmber 6th, 1916, when it was said by Pressler that Sehloss had signed the note ; and he further testified he not only did not sign the note, but that he did not authorize anyone else to sign it for him.

Snowden Hoff, for eighteen years an employee of the National Bank of Baltimore, for the last seven years as assistant cashier; William O. Pierson, for twelve years, an employee of the Union Trust Co. and for the last three years its treasurer; T. Howland Thomas, president of the National Bank of Baltimore and for twenty-five years connected with banks; John L. Swope, assistant cashier of the Western National Bank for twelve years; Arthur C. Montell, cashier of the First National Bank of Catonsville, all testified that they were familiar with the hand-writing of the defendant, and each of them was shown the note sued on in this case, as well as the “Strauss Note,” and each of them testified that in his opinion the name “Michael Sehloss,” appearing on each of said notes,, was not signed by Michael Sehloss, the defendant. In addition to these witnesses, there were two hand-writing experts, who, after comparing the disputed signatures with ⁷⁶ the admitted genuine signatures of the defendant, each testified that, in his opinion, Michael Schloss, the defendant, had not signed the name “Michael Schloss” appearing on the disputed notes. This Court, in Farmer’s Bank v. Hunter, 97 Md. 148 , in passing upon a similar local Act for Carroll County, said, speaking through Judge Briscoe, “the effect of this Act is to permit the defendant, in suits brought under the Act, to deny in the affidavit to the plea the genuineness of the signature of any paper purporting to be signed by the defendant, and if this is done, the signature thereto will be put in issue, and not be deemed as admitted for the purpose of the suit. “The affidavit to the plea in this case, expressly states that the defendant knows that the paper or promissory note, filed with the declaration in said cause, was not signed by him or by his authority, and that the signature or name thereto purporting to be his, was not -written by him or by his authority. “We are of the opinion that this was a sufficient denial of the signature to admit the defense of forgery relied upon by the defendant, and was in accordance with the express terms of the Act.” In the later case of Horner v. Plumley, reported in the same volume, page 271, this Court in passing upon the Act now before us, speaking through Judge Pearce, said: “When this ease was argued the question was an open one, but it has since been held in The Farmers’ Bank v. Hunter, ante p. 148, in a similar case arising under the Local Practice Act of Carroll County, that a denial of defendant’s signature, made in the affidavit annexed to the plea, is a, sufficient denial to require proof of execution from the plaintiff, though the plea itself contains no denial, and that the procedurel provided by that practice act was complete in itself and exclusive of Article 75, section 23, sub-section 108 * * *, without therefore repeating the views expressed in the case above ⁷⁷ mentioned, we refer to them as conclusively establishing that the note offered in evidence was not admissible as against Mrs. Plumley, without proof of its execution by her.” In the still later case of Councilman, v. Towson Bank, 103 Md. 469 , where the Court was again passing upon the effect of the local statute of Baltimore City, the testimony was conflicting as to whether Mrs. Councilman signed the note mentioned in the declaration, she having sworn positively that she did not, and there being evidence tending to support her, while Mr. Councilman testified she did, and there was some evidence sustaining him. In that case, the Court below granted the prayer of the defendant, Mrs. Councilman, instructing; the jury that “the burden is upon the plaintiff to prove that the note offered in evidence, dated March 17th, 1902, was signed by the defendant, and if the minds of the jury are left by the evidence in a state of equipoise on that subject, the verdict must be for the defendant.

Chief Judge Boyd, who delivered the opinion of this Court in that case, spoke of this prayer as being broad in its concluding part and possibly misleading, but this was owing to the- peculiar facts of that case. The claim of the plaintiff there was not confined to. the amount of the note, but included a claim of several hundred dollars on an open account, evidence of which was offered under the other counts of the declaration. Junan Boyd said: “It is evident that the defendant’s second prayer (the prayer to which we have referred) was supposed by the Court to be intended to apply to the note of March 17th, 1902, alone, and not to a recovery on the common counts for the amount originally loaned. It should have been distinctly so limited, but as we have said, if there was danger of misleading the jury, it would have been to the prejudice of the plaintiff and to the benefit of the defendant, and hence the latter cannot complain.” It is said in 8 C. J., page 998, section 1302, “that the burden of proving the execution of the hill or the note sued ⁷⁸ ■'on is on plaintiff at common law.

And by statutory enactment, it is now the almost universal rule that plaintiff has the burden' of proving execution of the instrument by defendant, provided the execution is denied by proper plea, as by a 'verified denial or plea of non est factmn, where a plea under oath is required for such purpose,' or by a specific plea where that is required by statute!” In 'the'case before us, the plaintiff seeks only to recover Upon' the note. This is all that is sought to be recovered by this action and' it is clear, we think, that the burden was up’oh the plaintiff to prove that the note sued on was signed by the defendant, and consequently the prayers of the plaintiff, asking that the jury be instructed that the burden was upon the defendant to prove that he did not sign it, were properly refused. It is time that the defendant’s fourth prayer does not confine the plaintiff’s burden to proving the execution of the note, but requires him to establish his case by preponderance of evidence, yet under the facts of this case, we do not think the Court erred in granting this prayer, or at least it committed no reversible error in so doing. The plaintiff’s fourth prayer, upon the measure of damages, was fully covered by its fifth prayer which was granted by the Court.

The Court was asked by the plaintiff’s sixth prayer to instruct the jury “that if they find from the evidence that the plaintiff purchased the note sued upon for value and before the same became due and payable, with no knowledge other than the note furnished on its face, then they must find that the plaintiff was a bona fide holder of said note, and no knowledge of failure or want of consideration in the giving of said note (even if the jury so find), subsequently acquired by him, can affect his title as a bona fide• holder for value.” The main issue in this case was upon the execution of the note, that is, was the name “Michael Schloss,” appearing thereto, signed by Michael Schloss, the defendant, or placed there by his authority. If it was not signed by him or by ⁷⁹ his authority no title in the note passed to Engel under the endorsement to him. By this prayer