Nichols v. Baker , 75 Me. 334 ( 1883 )

StMONDS, J.

One of the grounds of defence to this action on a promissory note alleged to have been signed by the defendant was, that if the signature was genuine — which was denied — it was procured by fraud, under the pretence of selling him some pruning shears to be subsequently delivered, or appointing him agent for the sale of them; — the men who obtained the note intending not to deliver the shears at all, but using the form of negotiation about them merely as an instrument of fraud, as a means by the aid of which they could the more readily accomplish their purpose of deceiving the defendant and getting his note by falsehood, without consideration and without knowledge even on his part of the character of the paper he was signing.

The court .correctly ruled that if the evidence sustained this claim in defence, the note as between the original parties would be void.

Upon this issue, then, the question of the intent of the men With whom the defendant dealt became material. The shears were never delivered, and no explanation was ever given. Was this accidental, due to subsequent causes which might remove the charge of fraud, or was it a part of the original plan —none having been sent because there was no intention to send them ?

Upon this question alone, and for the purpose of showing that the note was fraudulent in its inception, that the design was not to deliver the shears, the defendant offered testimony to prove that within a few days of the same time, the men who procured the note of the defendant had a substantially similar transaction with a resident of a neighboring town, and that in his case, too, the shears failed to arrive. To the admission of this evidence, carefully limited at the time and in the charge to the force the judgment of the jury should attach to it in explanation of the non-delivery of the shears, to its effect to strengthen the probability that the failure to deliver them to the defendant was intentional, there being no explanation in either case and two such accidents not being so likely to occur as one, the exception of the plaintiff cannot be sustained. It is clear upon principle that when the question to be tried is whether the failure in one Instance to deliver goods which had been promised and for which •a note had been given was intentional and fraudulent, or not, ’the fact that about the same time under similar circumstances, notes were procured by the same men in other instances upon the same promise to deliver goods, and none arrived and no explanation was given, is proper for the consideration of the jury in determining what design was present in the particular transaction upon which they are to pass. The ruling at the trial, in terms, only received the fact of non-delivery in two similar Instances as tending to show that in each, the intention to deliver Was wanting. We think this was correct and also that the ruling may be supported on broader grounds. It is generally true that Contemporaneous frauds may be proved when they tend to show a fraudulent intent in the particular transaction under investigation. In the numerous cases in which this question has been considered, there may be slight differences in result, not entire uniformity in deciding in what cases one fraud may properly be said to make manifest the intention which pervades another transaction -, but the rule of evidence certainly goes to this extent, as stated in Jordan v. Osgood, 109 Mass. 461, that another act of fraud is admissible to prove the fraud charged, when there is evidence that the two are parts of one scheme of fraud, committed in pursuance of a common purpose. This rule seems sufficient to justify the admission of the testimony to which exception is taken.

The procurers of the notes were two strangers, who hired teams at the plaintiffs livery stable in Bangor, were engaged for six or seven weeks in driving about the country, and then went away. Evidence tending to show that they were employed during this time, in obtaining notes from different persons upon the promise to deliver pruning shears for them, that their business with others and their methods of doing it were substantially the same as with the defendant, close similarity in the ways in which they operated in the several instances, in the representations and means by which they induced persons to sign, the number of notes which they obtained while driving* over a limited territory during comparatively a short period — the plaintiff himself having purchased six of them, — their going away without delivering the shears according to their promise, the appearance of the notes in the hands of persons claiming to collect them as innocent holders ; — evidence tending to show these facts was admissible to prove a general plan to defraud, of which the jury might find the transaction with the defendant was a single instance. In the general features- of the case, we think there was circumstantial evidence from which the jury were warranted in finding a common design in the two cases, the details of which were received before them ; — and evidence tending to show that such common design was a fraudúlent one, was pertinent, whether it related to one case or the other, or to both. The evidence went far enough in this direction to authorize the admission of testimony that there were other instances in which the goods were not delivered according to the contract, as tending to prove a fraudulent purpose in this.

In connection with the circumstances of the case, pointing* more or less directly to the conclusion that the men who' obtained the notes were the same in the two cases, papers written by them were received in evidence to enable the jury to judge of their identity by comparison of hands. To this exception was taken.

In 1 Greenl. Ev. § 512, referring to the use of answers in chancery in evidence in subsequent proceedings, it is said, "some proof of the identity of the party will be requisite. This may be by proof of his handwriting-. ” At the trial of indictments for perjury in such answers, it was held in Rex v. Morris, 2 Burr. 1189, and in Rex v. Benson, 2 Camp. 508, that identity of the pei'son might be shown by proof of handwriting. In an action against Henry Thomas Hyde, as the acceptor of a bill of exchange, it appeared that a person of that name had kept cash at the bank where the bill was payable, and had drawn checks which the cashier had paid. The cashier knew the person’s handwriting by the checks and testified that the acceptance was in the same handwriting; but he had not paid any check for some time and did not personally know him. There was no other proof of his identity with the defendant,, and this was held prima facie sufficient. "It cannot be saidí there was not some evidence of identity. A man of the-defendant’s name had kept money at the branch bank; and this-acceptance is proved to be his writing. ” Roden v. Ryde, 4 Ad. & El. N. S. 626. Where other writings, admitted to be-genuine, are in the case "the comparison may be made by the-jury with or without the aid of experts.” 1 Green!. Ev. § 578.. The rule of practice in this state allows papers not otherwise-pertinent, to be proved and offered in evidence for the single-purpose of enabling the jury to judge by comparison of hands-of the genuineness of signatures ; that is, whether they were or. were not written by the same hand. Chandler v. LeBarron, 45 Maine, 534. If they may judge of handwriting for the-purpose of determining the genuineness of a disputed signature,, they may just as well decide whether two hands are the same-for the purpose of determining the identity of parties. The process is the same, and the thing to be decided is the same.. Only the object of the inquiry differs. Proof of the genuineness-of two signatures in the same hand is proof of the identity of the writer of the two. One reason now given for excluding the opinions of non-experts who are not acquainted with the handwriting, is that the jury are as competent as they to make the-comparison. The papers written by these men at the two times,, were proper evidence for the examination of the jury on the-question of identity.

The jury might well find upon the evidence, that the note was; procured from the defendant by fraud, and that it was void between the original parties.

It was also for them to decide under proper instructions,, whether the plaintiff was a bona fide holder for valuable consideration before maturity and therefore entitled to recover the amount of the note, if genuine, notwithstanding the fraud ; and also the other controverted question whether the facts of the-case proved the note to be in law a forgery, void in the hands ■even of an innocent holder. Our opinion is that, there having been no error in the rulings on these points, the verdict is not •so clearly against the weight of evidence as to require the granting of a new trial.

Motion and exceptions overruled.

VirgiN, Peters and Libbey, JJ., concurred. Walton and Danforth, JJ., concurred in the result.