Kagel v. Totten

Yellott, J., delivered the opinion of the Court. The foundation of this action is a promissory note for $150.00 dated 20th of November, 1879, and payable six ⁴⁵¹ months after date to H. K. White & Co. or hearer. It was made payable at The Union National Bank of Westminster, Maryland. At the trial of the cause in the Court below, there was an adduction of evidence on the part of the plaintiff tending to prove that the signature was genuine; a competent witness testifying that he had frequently seen the defendant write, and from the knowledge of his chirogaphy thus acquired, believed that his name signed to the note was in his own hand-writing.

There was a subsequent admission by this witness, that he had not seen the defendant write during a period of several years. The testimony of the plaintiff revealed the facts that his occupation was that of a broker and dealer in negotiable paper, and that on the 29th of November, 1879, he had purchased the note in question from one Spears in Piedmont, West Virginia, for the sum of $112.50 ; said Spears being a travelling agent, employed by H. K. White & Co. to sell their paper; and the plaintiff buying a large amount of said paper put in circulation through the medium of this agency. The plaintiff was not acquainted with the signatures of the makers of said notes, and made no inquiry with reference to the consideration for which they were given; nor had he any knowledge of the relations subsisting between the defendant and H. K. White & Co., when the note in question was purchased, hut acquired such knowledge at a period subsequent to its maturity. The defendant, in testifying, declared that he had never given the note to H. K. White and Company; nor had ever seen the paper before its production in Court.

At this point his testimony was interrupted by his counsel, who, with commendable candor, admitted that the signature was genuine. In the sequence of the testimony there was a disclosure of the fact that, on the 20th of November, 1879, a total stranger, introducing himself as J. H. Miller, came to the residence of the defendant and, after some ⁴⁵² conversation, urged him to undertake an agency for the sale of certain washing machines, manufactured by H. K. White and Company, in St. Louis, Missouri. The defendant at first declined on the ground that being an illiterate man his deficiency in educational advantages would prove a serious obstacle to the proper transaction of the business. He finally yielded to importunities, and a contract of agency was signed in duplicate; Miller producing his own ink, and on the table, which he had covered with other-papers, holding down the sheets on which the defendant was placing his signature.

One of the duplicates was left, with the defendant and the other retained by Miller. The defendant proceeding with his testimony stated that he “signed no other papers besides these two contracts on that day or at any other time; no other paper was offered on that day to him to be signed by him; and he never signed such a paper as this note at all and never saw it before seeing it in Court; did not sign any paper or put his name to any paper on which were written and printed the words and figures that appear on the paper sued on; never was asked to do it; and never made or delivered a note to H.r K. White and Company. He signed his name but twice on that day and thinks there were other papers under the contracts when they were signed, but is not positive. Did not sign the property certificate-produced in evidence though the name thereto looks like-his hand-writing.” This testimony is corroborated in all its material parts by that of Mary Kagel, the wife of the defendant, who was. present during the whole transaction.

The testimony being closed the plaintiff offered one and the defendant eight prayers for instructions. The Court, rejected the prayers of the defendant and granted theplantiff’s prayer as follows: “The defendant has given no legally sufficient proof, from which the jury can find, in this case, that the note ⁴⁵³ sued on was obtained from tbe defendant in any manner •sufficient to relieve him from the payment thereof to the plaintiff in this action, with interest from its maturity.” ' To the granting of this instruction, and the rejection of his prayers the defendant has excepted and thus brings the legal questions involved into this Court for adjudication. The prayer of the plaintiff is based upon the hypothesis that the establishment of the proof referred to would be a mere work of supererogation on the part of the jury, its