Abbott v. Rose. was no writing on the paper before I wrote my name. I wrote my name on the paper that he passed across when he told me what the object was. I had the pen in my hand then. The instant I took my hand from the paper he caught it up, saying, 'this is nothing but an order, it don't require a stamp.' I wrote on the lower part of the paper, which was about the size of the note in suit. I signed no other paper than what I have stated; wrote my name that day on no other paper than what I have stated. I did nct at any other time sign a paper of the purport of this note in suit, which I first saw when shown to me in Lewiston by Mr. Whitmore, a week ago last Saturday." On cross-examination he added: "I am sure there was no other paper to be signed to complete the transaction between us, besides the book and this agreement. When he slipped this paper across the table for me to sign, I never read a word on it. I asked him no questions about it at all. All I can say is, I was to blame for not asking him what it was for. I can read very well. I had no idea what I was signing, only what I have said. He caught it up as soon as it was signed, and said it was only an order, and did not need a stamp. I did not ask him what the order was for. He made that expression, and put it in his book. I acknowledge I was a fool. I did not ask him to let me look at it and read it, when he said it was an order. I did not think any thing particular about it till a few days afterward." The defendant's sister testified that she was present at the interview, and corroborated his statement of the transaction. This note was sold with others by Persons to Carr & Williams, of whom he had hired teams; they sold them all to N. M. Whitmore, who again sold the whole lot, before maturity, to the plaintiff. Carr & Williams guaranteed them to Whitmore, and he te Abbott. The note declared upon was of the following tenor, the words italicized being printed in the original, and the rest in writing: "$50. GREENE, March 26, 1869. "One year after date I promise to pay O. F. Persons, or order, fifty dollars, value received. "HARRISON ROSE." 66 Indorsed, "O. F. PERSONS, without recourse." 'Waiving demand and notice, N. M. WHITMORE." Abbott v. Rose. The plaintiff objected to the defendant's testifying to any thing tending to impeach the note which he had signed, and permitted to be put into circulation. Among other directions, the presiding justice instructed the jury that if the testimony of the defendant and his sister in respect to it is true, then this instrument was a forgery, and this action cannot be maintained. To the admission of the defendant's testimony, and the effect accorded to it, by the above instruction, the plaintiff excepted, the verdict being against him. A. Libbey, for plaintiff. The defendant should not have been permitted to show fraud, until he had first affected the plaintiff with notice of it, the burden being on him (Rose) to do so. Baxter v. Ellis, 57 Me. 178; Lake v. Reed, 29 Iowa, 258, and 4 Am. Rep. 209. The instruction as to forgery was too general, and misled the jury. The true rule, stated most favorably for the defendant, is this: If he was induced to sign the blank note by reason of the fraudulent representations of the payee, fully credited and relied upon by Rose, that it was another paper, and not a note, and in so doing was not guilty of any laches, negligence, or misplaced confidence, by reason of which he enabled the payee to fill up the blanks, and put the note into circulation,-then he was not liable. The instructions given exclude the element of negligence altogether, and were therefore erroneous. Putnam v. Sullivan, 4 Mass. 45; Fearing v. Clark, 16 Gray, 74; Cranson v. Goss, 107 Mass. 439; S. C., 9 Am. Rep. 45; Douglass v. Matting, 29 Iowa, 498, and 4 Am. Rep. 238; Kitchen v. Place, 41 Barb. 465; Whitney v. Snyder, 2 Lans. 477; Gibbs v. Linabury, 22 Mich. 479, and 7 Am. Rep. 675; Garrard v. Hadden, 67 Penn. St. 82, and 5 Am. Rep. 412; State Bank v. McCoy, 69 Penn. St. 204; Chapman v. Rose, Alb. Law Jour. for March 8, 1873. Baker & Baker and W. Gilbert, for defendant. The instruction as to fraud and the burden of proof was correct. Aldrich v. Warren, 16 Me. 465; Perrin v. Noyes, 39 id. 384; Gould v. Stevens, 43 Vt. 125, and 5 Am. Rep. 255. No instruction was requested as to negligence, and it is too late to raise objection now. The necessity for this direction was not sc Abbott v. Rose. obvious and imperative as to require it to be given unasked. Harpswell v. Phipsburg, 29 Me. 313; State v. Conley, 39 id. 78. A party is only liable, on the ground of negligence, upon a paper in the shape in which it leaves his hands, and not as criminally altered by another. Holmes v. Trumper, 22 Mich. 427, and 7 Am. Rep. 664. Here was a combination of fraud and forgery. No agency created, because no consent to what was really done. Gibbs v. Linabury, 7 Am. Rep. 675. Defendant, even if negligent, is responsible only for those consequences fairly within his contemplation when he did the negligent act. Sexton v. Bacon, 31 Vt. 540; McDonald v. Snelling, 14 Allen, 290; Swan v. Australasian Co., 2 Hurlst. & Colt. 188. DANFORTH, J. This is an action upon a promissory note in the name of an indorsee, who claims as a bona fide holder for value, without notice of any infirmity in the note, and for aught that appears, is such. One of the defenses set up is, that the note was procured by fraud. Under these circumstances it is contended that the defendant, who is the maker, is not a competent witness to prove the fraud, until he has first shown that the plaintiff had notice of it. In Walton v. Shelley, 1 T. R. 296, it was decided that a party to a contract, not interested in the result of the suit, was, on the ground of public policy, inadmissible as a witness to prove fraud in its inception. Subsequently, in Bent v. Baker, 3 T. R. 27, the rule was held applicable to negotiable paper only, and in a still later case, Jordan v. Lashbrooke, 7 T. R. 601, Walton v. Shelley was overruled, and since that, in England, a party to negotiable paper has in no case been excluded as a witness for the reason of his being a party. In this country the law has been differently settled in different States. In Massachusetts the question came before the courts in the early case of Churchill v. Suter, 4 Mass. 156, and has been discussed in many cases in that Commonwealth, and in our State since that time. Manning v. Wheatland, 10 Mass. 505; Pickard v. Richardson, 17 id. 122; Deering v. Sawtelle, 4 Me. 191; Chandler v. Morton, 5 id. 374; Clapp v. Hanson, 15 id. 345; Lincoln v. Fitch, 42 id. 456; Baxter v. Ellis, 57 id. 178; and perhaps some others. In all these cases, however, it will be found that the rule has not been carried beyond that of Churchill v. Suter, and in ali the party was excluded, because the consideration of the note was Abbott v. Rose. illegal, or the note void in its inception, and the witness offered was not only a party to the note, but also to its illegality, or a partaker in the wrong which rendered it void. In Thayer v. Crossman, 1 Metc. 416, after a review of the authorities, SHAW, C. J., remarks, on pages 421-2: "From this view of the authorities, and assuming that the rule, as laid down in Churchill v. Suter, is the true rule of law in this Commonwealth, we think it will appear to be confined to negotiable bills and notes, actually indorsed and put into circulation by the witness, with a view to give them currency as negotiable securities." In Buck v. Appleton, 14 Me. 289, WESTON, C. J., speaking of the case of Churchill v. Suter, says: "It is well known that the principle upon which that case was based has been repudiated in the country from which it was derived, and that neither this court, nor the courts in Massachusetts, have been disposed to extend it." Does, then, the testimony of the defendant come within the rule as established by the cases referred to? We think it does not. He was not, certainly, a willing party to any wrong in the consideration, or want of consideration, of the note. His testimony now is not inconsistent with any purpose he then had in view, or any intentional act then performed. He did not, according to the testimony, sign the note for the purpose of giving it currency as a negotiable security; he did not sign it as a note, but only as a different paper, and for an entirely different purpose. The question is not, whether under his statement he is liable, but whether the facts are such that he cannot legally testify to them. As they do not proclaim any turpitude on his part, as they tend to show, not that the paper, as originally signed, was void for the purpose for which it was signed, but that it was not then, and was not intended for a note, we see no reason, grounded upon public policy or otherwise, why the testimony should be excluded. The testimony would certainly be admissible from other witnesses, and under our present statutes, and the rule established by the cases already referred to, and which we do not intend to subvert, is equally admissible from the party, unless by some previous act, inconsistent therewith, he has disqualified himself. Such previous act we do not perceive. Another defense set up in this case is that of forgery. Upon this the instruction to the jury, to which exception is taken, was: “If the testimony of the defendant and his sister in respect to it is Abbott v. Rose. true, then this instrument was a forgery, and this action cannot be maintained." If this instrument was a forgery, it was so by virtue of an alteration, and not of its original execution. It is true the defendant testifies, substantially, that he signed it under a misapprehension, into which he was led by the acts and statements of the payee. He further testifies that "there was some printing on that paper; it was a blank form. * There was no writing on that paper before I wrote my name. The only conclusion to be drawn from this testimony is, that the paper was an unfinished one, to which something more was to be added to complete it. The paper at that time, then, had no validity for any purpose whatever. The case of State v. Shurtliff, 18 Me. 368, differs materially from this. That was a criminal proceeding, the purpose of which was to punish the wrong-doer. This is a civil action upon a negotiable instrument, and involves the rights of an innocent holder. If a forgery, it became so only by the alterations made subsequently to its delivery. These changes or additions were certainly sufficiently material to make it such. But whether so or not, might depend upon the relations existing between the parties. If the paper was delivered as a completed instrument, without authority, express or implied, to fill any blanks or make any changes, the subsequent additions would clearly be a forgery. If, on the other hand, it was delivered as an incomplete instrument with blanks to be filled, then, even if the blanks were fraudulently filled, and the instru ment made different from what the signer authorized or intended, according to the case of Putnam v. Sullivan, 4 Mass. 45, it would not be forgery, but a breach of trust. It becomes, then, material to know the object or purpose for which this instrument was delivered to the payee; not what the defendant might suppose the instrument itself to be; but did he deliver it with blanks which he expected to be filled? His own testimony may be entirely true, and yet the inference may be drawn, if not from that alone, certainly from that and other testimony in the case, that the instrument which now turns out to be a negotiable note was executed and delivered as an unfinished paper with blanks to be filled. The possession of such a paper, with a genuine signature, would be, at least, prima facie evidence of authority to fill it up. So. Berwick v. Huntress, 53 Me. 89; Story on Promissory Notes, § 37; Fearing v. Clark, 16 Gray, 74. By the instruc VOL. XVI. - 55 |