LEVI v. RUBIN

Evidence, Of genuineness of signature; Opinion: expert; Presumptions and burden of proof. Bills and Notes.

Where, at the trial of an action against an indorser upon a negotiable promissory note, the genuineness of the signature of the defendant was denied and there were submitted to the jury standard signatures, of the defendant, which were introduced by the plaintiff and which the defendant admitted to be genuine, the jury were warranted in finding the defendant's signature upon the note to be genuine although no handwriting expert so testified, there was no direct affirmative evidence to that effect, and a handwriting expert called by the defendant testified to the contrary.

BRALEY, J.

The answer having specially denied the genuineness of the defendant Herschman's signature, the plaintiff could not recover unless he introduced evidence which would warrant the jury in finding that the name "F. Hershman," appearing as an indorser on the promissory note declared on, was affixed by him or by his authority. R. L. c. 173, § 86. True v. Dillon, 138 Mass. 347. Boles v. Harding, 201 Mass. 103, 106. The record recites that "several genuine signatures of this defendant were admitted and introduced in evidence as standards and submitted to the jury." The defendant however asked the court for a directed verdict, and to rule that "there is no sufficient evidence that this defendant ever indorsed or authorized the indorsement of the note in suit, sufficient for the plaintiff to recover."

The motion and request were denied rightly. It is argued that the proof failed because there was no affirmative evidence for the jury of the genuineness of the defendant's signature. While the plaintiff could have introduced the opinion of experts, or of those who were familiar with the defendant's handwriting, Hall v. Huse, 10 Mass. 39, Moody v. Rowell, 17 Pick. 490, the jury nevertheless had before them the standards admitted without objection and could make the necessary comparisons for themselves. Homer v. Wallis, 11 Mass. 308. Richardson v. Newcomb, 21 Pick. 315, 317. Commonwealth v. Sturtevant, 117 Mass. 122, 133. Wigmore on Ev. §§ 2016, 2020, 2921.

The defendant's second request which the court declined to grant, that "There is no sufficient evidence of any adoption or ratification on the part of this defendant of the indorsement of his name on the note in suit sufficient to entitle the plaintiff to recover" has become immaterial in view of the specific finding of the jury, that the defendant signed the note personally: "It was his own signature." Cunningham v. Parks, 97 Mass. 172. Hart v. Brierley, 189 Mass. 598.

Exceptions overruled.