Starr v. Yourtee

Le Grand, G. J., delivered the opinion of this court. This was an action brought by the appellant, as endorsee, ³⁴⁸ against the appellee, as endorser of a promissory note, made by Howard Paceley, payable to William C. Kirkhart, endorsed by the names of William C. Kirkhart and Aaron B. Yourtee, the appellee. The note was regularly protested, and the parties duly notified. The defence was, that the name of the appellee had been forged in the endorsement of the note.

The plaintiff offered five prayers, the first two were conceded, and the others rejected. The facts of the case, so far as developed by the record, and necessary to be considered in connection with the propositions of law embraced in the prayers, may be thus stated: It appears that a certain William Johnson agreed to do work on a mill for Howard Paceley, for which he was to be paid, according to the terms of the contract, cash, but by a subsequent arrangement, he agreed to accept and did accept, in lieu thereof, the note which is the subject of controversy in this suit. The note, according to the testimony, was delivered to Johnson on the day on which it bears date, having the endorsement of bolh Kirkhart and the appellee, Yourtee, on it at the time. There is no question as to the genuineness of the signature of the maker, nor of that of the endorsement by the payee, Kirkhart.

It is conceded that the endorsement in the name of Yourtee is a forgery. The right to recover as against Yourtee, is rested entirely upon the ground that his conduct in regard to the note, whilst it was in the possession of Johnson, was such as to make him responsible to an'innocent holder for value. The solution of this question of course depends wholly upon the evidence, and especially upon the declarations of Yourtee, in regard to the note. It may be here remarked, that the note was passed to the present holder of it, the plaintiff, without any endorsement on the part of Johnson.

Two witnesses testify as to conversations held with the defendant, touching the note, the genuineness of the endorsement in his name, and his responsibility because of such endorsement. The witness, Bateman, states that sometime in January 1858, he accompanied Johnson on a visit to the de ³⁴⁹ fendant, and that during the conversation which then took place, “Johnson handed to the witness the note sued on in this case, which lie said was the same note which the witness then read; he then turned it over and read the name of William C. Xirkhart endorsed on it, and something was said about it; he then read Aaron B. Yourlee’s name, and asked Mr. Yourtee whether it was his name, and he said it was his name; he neither said nor intimated that it was not his.” Witness further says that during the same conversation, “he read the name of Aaron B. Yourtec, and asked him (the defendant) whether it was his name, and he said it was bis name; thinks the note was not handed to Yourtee, but he saw it. In this conversation Johnson spoke to Yourtee about taking the amount in payments, if he would make it safe to him, and Yourtee replied, it was kind in him. Witness had no suspicion about the signature being genuine, as he knew nothing about it.” The witness, Johnson, after detailing how he became possessed of the note, and under what circumstances he endeavored to get rid of it, proceeds to say, that “he saw Mr. Yourtee some months after he got the note, meeting him on horse-back.

He showed him the note and his name on it, and at first Mr. Yourtec said he did .not recollect when he signed it. Witness then required him to say distinctly whether it was his signature or not, because if it were not his, he would have a legal investigation about it. Mr. Yourtee said, in reply to this, ‘I won’t say it is not mine,’ and added that lie would see Paceley about it. He told Mr. Yourtee he wanted to use it, and if he agreed to renew the note, he would deduct from it a small amount which Paceley claimed, and which he was willing, in that event, to allow — - about twenty dollars.

He declined giving a new note without seeing Paceley. The witness met the defendant after-wards, near his house, and before Paceley left Washington county, when the defendant told witness he was satisfied the note would be met at