
    BILLS AND NOTES — EVIDENCE—PARTIES.
    [Cuyahoga (8th) Circuit Court,
    December 21, 1906.]
    Marvin, Henry and Wildman, JJ.
    (Judge Wildman of the sixth circuit, sitting in place of Judge Winch.)
    Eldoras S. Tucker v. Alma S. Sherman.
    1. Right to Change Character of Party by Amendment.
    Allowing a plaintiff to amend his petition so as to substitute himself as executor for himself in his personal capacity is not error. ‘
    [For other cases in point, see 6 Cyc. Dig., “Parties,” §§ 514-630. — Ed.]
    2. 'Necessity of Denial of Genuineness of Signatures.
    That the signature of an indorser of a note is genuine need not he expressly proved by one claiming through such indorsement unless expressly denied.
    [For other cases in point, see 1 Cyc. Dig., “Bills, Notes and Checks,” §§ 1753-1799. — Ed.].
    3. Sufficiency of Denial of Ownership of Notes.
    The facts by which the plaintiff as executor claims title to a promissory note being specifically set up in the petition and not expressly denied by the defendant, it is not necessary for the plaintiff to show that the note was sold to the testator and delivered to him in his lifetime and that they belonged to him at his death, but the note itself with its in-dorsement may be offered in evidence.
    4. Effect of Unlawful Indorsements on Notes by Third Persons. ,
    
    When it is proved that notes belonged to a person at the time of his death, proof that unlawful indorsements have been made after his death cannot affect the right of his executor to recover on such notes.
    E. .Charges to be Taken by Jurors in Their Retirement.
    It is only such charges or instructions to the jury as are requested to be given in writing before the argument is commenced that are required by Rev. Stat. 5190 (Lan. 8699) to be taken by the jurors in their retire- . ment.
    [For other cases in point, see 2 Cyc. Dig., “Charge to Jury,” §§ 181-200. —Ed.]
    [Proof of this decision and syllabus was submitted to Judge Marvin and corrected. — Ed.]
    
      ERROR to Cuyahoga common pleas court.
    C. S. Bentley, for plaintiff in error.
    N. H. Bostwick, for defendant in error:
    Averments of amended petition not denied by answer and therefore deemed to be true. Abbot, Trial Ev. (2 ed.) 550; Da/ois v. Bartlett, 12 Ohio St. 534 [80 Am. Dec. 375]; Allen v. Johnson, 11 Cire. Dec. 42 (20 R. 81.
    If on the admitted facts and the proof the verdict is clearly wrong, a new trial should be granted. If the court only doubts its correctness, it should be left as it is. Palmer v. Coioie, 27 O. C. C. 617; French v. Millard, 2 Ohio St. 44; McGatrich v. Wason, 4 Ohio St. 566; Cincinnati Trac. Co. v. Wooley, 17 Dec. 19.
    Refusal of court to allow charge to go to the jury. Pittsburg & L. E. By. v. Bishop, 7 Circ. Dec. 73 (13 R. 380).
   MARVIN, J.

The defendant in error brought suit against the plaintiff in error upon two promissory notes, setting out each one as a cause of action against the defendant. This suit was brought by her in her individual personal capacity. The notes sued upon are alike except that one is payable two years after its date and the other .three years after its date. The first note reads:

“Painesville, Ohio, March 18, 1896.
“$1,500.
' “Two years after dáte I promise to pay to the order of IT. C. Walton fifteen hundred dollars, at Boughton, Ford & Co., Burton, Ohio, with interest at 6 per cent annually, value received.
“Secured by mortgage.
“E. S. Tucker/-’

The following is written on the back of said note:

“Pay to Alma S. Sherman or order. TJ. S. WeltoN.”

There are no credits indorsed on said note.

This suit was begun on June 10, 1902. On December 31, 1904, on motion of the plaintiff, she was permitted by the court to amend her petition, substituting herself as executor of the will of Roger Sherman, deceased, for herself in her personal .capacity, and alleging that by reason of the facts set out in said amended petition she was the owner of said notes as such executor. This amendment was made over the objection of the defendant. . The plaintiff was also allowed to amend by making a new party defendant in the case, but nothing that was done by the court in reference to such new party in any wise affects any of the parties now before this court, and nothing need be said as to that amendment. As to the amendment substituting herself as executor, an exception was taken. We think that the action of the court in that regard is fully justified by the case of Becker v. Walworth, 45 Ohio St. 169 [12 N. E. Rep. 1], On pages 174 and 175 this language is used (It should be said, however, before reading this, that a suit was brought against a person in his personal capacity and that thereafter application was made for leave to amend, letting the suit stand as against the defendant as executor.) :

“The filing of the first petition in the case is claimed to contain an election. In- the caption to that pleading the defendant was described as ‘Michael Becker, executor of the estate of Abram Rafenstein. deceased,’ and in the body the allegations purported to charge him as executor. Before answer, on leave, the petition was amended so as to charge him personally. This leave was granted without prejudice to defendant’s right to insist that plaintiff had elected to make her claim against him as executor, and not personally.
“Our practice encourages great liberality in pleading, and the code enjoins the duty of allowing amendments at all stages of a case in furtherance of justice. The commencement of the action by the filing of an original petition against defendant as executor worked no prejudice to him, and it is not easy to see why such commencement of t'he action should preclude amendment on the part of the plaintiff in order to charge him personally. It was no more than the discontinuing of one action and the commencement of another, and this may have been induced by the discovery that the one would prove wholly fruitless. ’ ’

That reasoning applied to this ease would justify the court in permitting the amendment to be made, and there was no error in that regard.

It is further claimed that the court erred in admitting the. notes in evidence. I read certain allegations in the amended petition and certain parts of the answer. In each cause of action this language is used:

“There are no credits indorsed on said note; said note was duly indorsed in blank by said U. C.' Welton and sold and delivered to said Roger Sherman by him long beforeAts maturity, and said Roger Sherman was the owner and holder of said note at the time of his death.”

In answer to this the defendant sets out that there was a fraud perpetrated upon him in the procuring of these notes ; that he was induced by certain fraudulent representations and conduct on the part of the payee of the notes to give the notes in part payment of the purchase price of certain lots near the city of Chicago; that the lots were not the ones shown to the defendant at the time he made the purchase; that they were not such lots at all as they were. represented to be, and that Sherman (the deceased) was a party to that fraud, but the only denial contained in this answer is in these words:

“This defendant denies that said notes are owned by the plaintiff; and he says that if and so far as said plaintiff may on the trial hereof produce evidence of her ownership, she took whatever title she has or .shall show, with notice of this defendant’s said claim and defenses to said notes, and after the same each became due by the terms thereof and her said testator at the time he received said notes and at the time of the giving of the same was interested with said Welton in said transaction and in said lots and in said transaction the said Welton acted in whole or in part as agent for said Roger Sherman, deceased, who was then in full life.”

The plaintiff said sne owned-the notes as executor. The defendant denied it. Plaintiff said she owned the notes because they were duly indorsed in blank by U. C. Welton and delivered by him to said Roger Sherman long before maturity, 'and said Roger Sherman was the owner and holder of said notes at the time of his death. This is not denied, the only denial being as hereinbefore quoted, ‘ ‘ this defendant denies that said .notes are owned by the plaintiff. ” It is urged that it is a sufficient deni.R, and in a brief submitted to-day attention is called to Booco v. Mansfield, 66 Ohio St. 121 [64 N. E. Rep. 115], and especially to page 135; Chamberlain v. Railway, 15 Ohio St. 225 and the language of the court on page 250; Boggs v. Wann. 7 O. F. D. 439 [58 Fed. Rep. 681] ; Stoutenburg v. Lybrand, 13 Ohio St. 228. In each of these cases, it is held that it is a denial of the right of the plaintiff to recover when one denies the ownership of a note sued upon. He need not set up the facts upon which he relies as showing that the plaintiff is not the owner. But here the plaintiff has set out the facts upon Avhich she relies to show that she is the owner, to wit, that the notes were owned by her testator long before they were due and that they were indorsed in blank and delivered to him and that they were his property at the time of his death. So that under the pleadings it was not necessary for the plaintiff to show that the notes were sold to the testator and delivered to him in his lifetime and that they belonged to him at the time of his death, but she offered the notes in evidence, and it is said that there was error in admitting them in evidence.

She had testified that the notes were in her possession. She testified where she found them, one in the safe with her husband’s papers, and the other in a bank at Titusville, Pennsylvania. There is nothing to indicate how it came to be there. The allegation of the petition is, that it belonged to her husband when he died; this is not denied. Now, when she produced the notes in evidence it is a sufficient showing — at least it tended to show — that she as executor was the owner of the notes. Indeed, I think it was enough that they were the property of the testator when he died and that she had them as the executor of his will, and there need be no other showing about it. It certainly could not prejudice the defendant below that she produced ■ the notes as tending to show her ownership of them as executor.

In the brief of counsel for plaintiff in error, it is urged that there was no evidence that the name of the payee on the back of the note was his genuine signature. It was not necessary to show that that was a genuine indorsement because it was not denied. The plaintiff testified to the fact that the indorsement as it now appears upon the notes was not upon the note at the time of the death of her husband but that the only indorsement upon the note at that time was simply the name of the payee and that the words appearing above that name now on the notes, “Pay to Alma S. Sherman or order.” “I hereby waive demand of notice and protest, ’ ’ were written after the death of Roger Sherman. Remembering that the notes belonged to Roger Sherman when he died, no action of the payee could take away the ownership of these notes in the representative of Roger Sherman. For as they did not belong to Welton, he could not make any indorsement after the death of Sherman which could change the ownership.

It is said, however, that there was error in the charge of the court in these words:

“It is the claim of the plaintiff that after the death of Roger Sherman these notes were found among his papers, or were found under such circumstances or in such place as indicated that they were under his control at the time of his death, and in his possession, actual or constructive, and it is also claimed by plaintiff that at that time the only indorsement on the back of the note was the name “TJ. C. Welton.” Now, if that be true, if these notes were found in his possession, actual or constructive, and by constructive I mean that they were found where he had placed them for some purpose without intending to part with the ownership of them, the presumption, I say, would be, that they belonged to him at the time of his death.”

There was nothing in the evidence that could justify this language, as applied to the note found in the bank at Titusville, but there being no denial of his ownership at the time of his death, there was no prejudice in that. The same may be said as to other language of the court in regard to establishing the ownership of the notes. It was admitted that they belonged to Sherman when he died.

Again complaint is made of the action of the court, in refusing to send certain written instructions to the jury. The facts, as shown by the bill, are, that after argument the court said that plaintiff had submitted twenty-one requests; that the court,declined to give these requests except, as given in the general charge, and then the court said, 'as appears on page 27 of the bill:

“The requests of the defendant to charge the court will give, all except the eighth; but I have great doubt, Judge Bentley, whether I ought to give the eighth one — the last one; I don’t know whether it would be fair to the other party to give that request in this case.
“Mr. Bentley. I think fairness to the defendant, Tucker, requires something in the nature of that request, or something of an equivalent nature should be given.
“The Court. I will give it.”

Then follows two requests. The language is:

“1. The defendant, Tucker, moves the court to dismiss this action i upon the pleadings herein.
“This request is refused.
“2. In case said first request is refused, said defendant, Tucker, requests the court to direct the jury to return a verdict for the defendant, Tucker.
“This request is also refused.
“Then comes the charge proper to the jury.”

This is followed by numbered paragraphs, beginning with No. 3 and ending with No. 8, and then follows what is further said to the jury.

It is nowhere said that the numbered paragraphs were in writing, and only by implication is it said that they were the instructions requested by anyone. "We think, however, it is fair to treat them as being in writing and as requested by the defendant. At the close of the charge the bill shows the following:

“Counsel for defendant, Tucker, asks that the requests to charge^ that were given,, go with the jury on their retirement. Said request was refused. ’ ’

As already said, the implication is, that these were in writing and we treat them as though they were. It cannot be assumed that these requests were made before the argument. We must treat them as being made at the conclusion of the argument.

This brings us to the construction of Rev. Stat. 5190 (Lan. 8699), the fifth and seventh subdivisions of which read:

5. “When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.
7. “The court, after the argument is concluded, shall, before proceeding with other business, charge the jury, any charge shall be reduced to writing by the court, if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written or given, shall not be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case.”

These subdivisions read substantially as the fifth and seventh subdivisions of old Sec. 33 of the criminal code, found in 74 O. L. 349 (Rev. Stat. 7300, Lan. 11054). There is no difference in the reading insofar as the written instructions to the jury are concerned.

In the case of Griffin v. State, 34 Ohio St. 299, the second clause of the syllabus reads:

“Under Sec. 33, title 2, Chap. 6 of the penal code (74 O. L. 349), special instructions given to the jury in writing, after argument, are not required to be taken by the jury, in their retirement, where the principal charge is not’ required to be in writing. ’ ’

The opinion of-the court bears that out. On page 303 the court say:

“The only charges that the court is required to reduce to writing, under either clause of the section, are such charges or instructions as it is requested to reduce to writing before the argument is commenced; and it is too late to make the request after the argument is commenced. ’ ’

To the same effect are the cases, Foy v. Railway, 6 Circ. Dec. 396 (10 R. 151, 153-4) and Caldwell v. Brown, 6 Circ. Dec. 694 (9 R. 691). In each ease the opinion was delivered by Judge King and it is said that the requests which must go to the jury are those mentioned in Subd. 5, to wit, requests to charge before argument. Entirely consistent with these authorities are the cases in Cone v. Bright, 68 Ohio St. 543 [68 N. E. Rep. 3], and Householder v. Granby, 40 Ohio St. 430.

Following the construction given to these several statutes, we find no error in the action of the court in this regard, and no error in the record of the case.

Judgment affirmed.

Henry and Wildman, JJ., concur.  