Nicholson v. Snyder

Pearce, J., delivered the opinion of the Court. This suit was brought to recover the amount of three promissory notes payable to the order of J. Henry Snyder of Charles, made and signed by James A. Nicholson, and purporting to be signed by Laura V. Nicholson, his wife, but James A. Nicholson having died before suit was brought, the appellant was the sole defendant. These notes were as follows: One for $2,000, dated August 27th, 1899 @ 4 months, one for $2,000, dated November 28th, 1899 @ 2 months, and one for $400, dated November 13th, 1899 (a) 4 months. The declaration contained the common counts, and a special count on each of the notes, and the plaintiff annexed thereto the affidavit required when proceeding under section 313 of the New Charter of the city of Baltimore known as the Practice Act.

The defendant pleaded the general issue pleas, and annexed thereto an affidavit denying that her alleged signatures to said notes were written by her or by her authority,' as required by section 312 when such signatures are denied. Upon ⁴²⁰ the trial, a verdict for $5,189.79, the full amount of these notes, was rendered for the plaintiff, and the defendant has appealed from the judgment entered thereon. The plaintiff contended that section 108 of Art. 75 of the Code, regulates the defens°e, and that under it, the denial of defendants could only be made in the plea itself, and that the defense of forgery was therefore not in the case, but the Court ruled that the denial could be made in the affidavit as provided by sec. 312 of the New Charter. Since that ruling was made, its correctness has been established by two recent decisions in this Court, one in Farmers and Mechanics Bank v. Hunter, ante p. 148, decided April 1st, 1903, under the Local Law of Carroll County, and one in Horner v. Plumley, ante p. 271, decided April 22nd, 1903,. under sec. 313 of the New Charter, the latter being substantially the same as the Local Law of Carroll County.

It is unnecessary therefore to dwell upon that question. It was contended however by the plaintiff that the defendant’s affidavit did not conform to the requirements of sec. 312, and this objection will be first considered. That section provides that the affidavit shall state that the affiant “knows that such signature was not written by, or by the authority of, the.person whose signature it purports to be the defendant’s affidavit being that “she knows her alleged signatures upon the notes filed, with the declaration in this case, were not written by her, or by her authoritythe argument of the plaintiff being that it should have said that “none of her alleged signatures upon said notes were written by her or by her authority.” We do not think this criticism can be allowed to prevail, though it might have been more prudent to exclude the possibility of criticism by using some such language as it suggests. We think however the language used constitutes a sufficiently clear denial of the authenticity of all the signatures, and is, in legal contemplation, a denial of the signature of each.

If there could otherwise be any serious question upon this point, it is removed by the reference in the affidavit to the notes, as being those “filed with the declaration in this case,” thereby emphasizing that ⁴²¹ the denial embraces all the notes sued on, and consequently, every one of them; and we are not required to strain the construction of a statute, or the meaning of the language of this affidavit, for the purpose of depriving a party of so meritorious a defense as forgery. During the progress of the trial eight exceptions were taken to rulings upon the evidence, and one to the rulings on the prayers. The first exception was taken to the admission in evidence of the record of a proceeding in bankruptcy instituted in the United States District Court by the present plaintiff against the present defendant and her husband, upon the first of the promissory notes herein mentioned, which proceeding was, after the death of the husband, dismissed without prejudice, upon petition of the plaintiff because he had ascertained to his satisfaction that Mrs. Nicholson was not in fact insolvent. This record was offered with the special purpose of contradicting by Mrs, Nicholson’s answer in that proceeding, her plea and affidavit in this case.

The eighth exception was taken to the refusal of the Court to allow the notary public before whom the defendant’s answer in the bankruptcy proceeding, purported to be sworn to, to impeach his official certificate. Both these exceptions were abandoned by the defendant at the argument in this Court, and we think correctly. Among the proceedings in bankruptcy which were admitted in evidence was a paper purporting to be an answer by Mr. and Mrs. Nicholson to the petition of the plaintiff, which expressly admitted “the indebtedness of $2,000 alleged in the petition,” but denied the insolvency of Mrs. Nicholson. This paper was signed by Mr. Nicholson, and by John W. H. Fry, his counsel, who signed as “attorney for respondents,” but it did not purport to be signed by Mrs. Nicholson.

After the plaintiff closed his case, the defendant called a Mr. Schaeffer as a witness, and offered to prove by him the following facts: That he went with Mr. Nicholson, at his request, about February 2nd, 1900, that being the date of the alleged answer, to Fry’s office; that Fry prepared the alleged answer then and there, in their presence; that the notary, William H. Jones, ⁴²² was sent for and certified the affidavit attached to the answer; that Fry then said it was very important it should be immediately filed in the United States Court and that he had only a moment to get over..to Court, as it was then nearly four o’clock; that Mrs. Nicholson was not present and did not sign the answer then, and that so far as he knew there was no com-, munication between Mrs. Nicholson, and Mr. Fry and the notary on that day; but the Court refused to allow this offer, and this constitutes the second exception. Mrs. Nicholson was then sworn as a witness, and was asked, after referring to the answer, “Had you any knowledge of the preparation and filing of that answer ?” which was also refused, and it constitutes the third exception. She was then asked, “did you authorize Mr. Fry, or any one, to prepare that answer for you?” which was refused, and this constitutes the fourth exception. , She was .next asked, “Did you swear to that answer?” which was also refused, and this constitutes the fifth exception. r She was next asked, “Look at the note dated August 27th, 1.899, for $2,000, payable to the order of J. Henry Snyder of Charles, and state whether you ever signed it, or authorized any one to put your signature to it?” which was also refused, and this constitutes the sixth exception. , Lastly, she was asked, “Have you ever, since the date of that note, ratified it, or adopted it, or promised to pay it ?” which was also refused, and this constitutes the seventh exception. . .These rulings are all manifestly based upon the theory that the alleged answer in .the bankruptcy proceedings was a conclusive admission of indebtedness upon that note, and that as, the'evidence offered contradicted that answer, it was not admissible. • These rulings therefore, must either stand, or fall, together. . The plaintiff then offered three prayers, all of which were, granted, and the defendant offered five,-all of which were refused except the second which dealt only with the two notes ⁴²³ not involved in the bankruptcy proceedings, as to which the jury were instructed that if they believed they were never signed by Mrs. Nicholson, nor authorized nor ratified by her, and that she never promised to pay them, then the plaintiff could not recover thereon.

For the purposes of this case it will only be necessary to consider the first prayer of the plaintiff and the first prayer of the defendant. By the plaintiff’s first prayer, the jury was instructed that the defendant was estopped from denying her liability upon the note of August 27th, 1899, and that as no evidence had been offered of payment of any part of this note, the verdict must be for the plaintiff for the amount of that note with interest. The defendant’s first prayer which was refused, asked that the jury be instructed that if they believed Mrs. Nicholson did not sign that note, nor authorize any one to sign it for her; that she never ratified the signing, never assumed any liability for the note, and never promised to pay it; then the plaintiff could not recover thereon. It will thus be seen that all the exceptions, and the two prayers above-mentioned, involved substantially the same question, and may all be considered together.

It is settled law that a record in a chancery suit between the same parties, and relating to the same subject of inquiry, is admissible evidence in a subsequent suit between the same parties for the purpose of proving antecedent admissions of either party relative to rights again involved in controversy; (Mobberly v. Mobberly, 60 Md. 376 ), and this is equally true of a record in a Bankruptcy Court. This rule rests upon principles sound in themselves, and as satisfactory to the lay as to the legal mind, for consistency in essential and fundamental matters is universally regarded as one of the surest indications of truth and accuracy, as inconsistency is of doubtful veracity or infirmity of memory. When one, is called on in law to assert or defend a right, he is not likely to make any admission destructive of, or prejudicial to, his right, unless compelled by his regard for truth, and therefore it is eminently proper that any such ad ⁴²⁴ mission, whether made in the pleadings, or in the evidence, should be regarded as of high probative force. But the whole value of such evidence depends upon whether the admission was in fact made, as it purports by the record to have been made, for if not in fact made, the refusal to inquire into this fact results in the