
    EVIDENCE.
    [Hamilton Circuit Court,
    January Term, 1901.]
    Swing, Giffen and Jelke, JJ.
    
    Stephen Hauser, Sr., v. Anna Assel.
    Negative Testimony as to Signature to a Note.
    In an action upon a promissory note, the issue being as to whether defendant signed the note, negative testimony to the effect that defendant never denied the signature cannot be converted into positive testimony that she did sign it, unless attention was called to the matter in such a way as to call for an answer or statement.
    Heard on Error.
    
      George W. Hard acre, for Hauser.
    
      Chris. Von Seggern, for defendant in error, cited:
    Jenz v. Gugel, 26 Ohio St. 527, (Syl. 2); Allison v. Porter, 29 Ohio St. 136 ; Levy v. Earl, 30 Ohio St. 147, 171; Avery v. Vansickle, 35 Ohio St. 270; Levy v. Earl, 30 Ohio St. 148; Payne v. Thompson, 44 Ohio St. 192, 205 [5 N. E. Rep. 654; Speier v. Opfer, 2 L. R. A. 345,, notes [40 N. W. Rep. 909 ; 73 Mich. 35; 16 A. S. Rep. 556]; Logan v. Thrift, 2Q Ohio St. 62; Davis v. Smith, 13 Central Law Journal 293 ; Hershizer v. Florence, 39 Ohio St. 516 and Phillips v. Graves, 20 Ohio St. 373 [5 Am. St. 675]; Williams v. Urmston, 35 Ohio St. 296 [35 Am. Rep. 611].
   Swing, J.

An issue was raised on the pleadings as to whether Anna Assel signed the note which is the foundation of the action in this case. On this issue we find no evidence offered by the plaintiff which tends to prove this issue. One witness testifies that the question of the signature of the note never was denied or questioned; but no facts are stated-which would naturally put in question her signature. The note was not shown her, and she was not asked whether she had signed it, and negative testimony to the effect that she never denied the signature could not be converted into positive testimony that she did sign it, unless her attention was called to the question as to whether she* did sign it or not in such a way as to call for an answer or statement. There was therefore no affirmative evidence tending to show that Anna Assel ever signed this note. There was, however, evidence, which goes strongly to show that she did not sign it. The note was signed A. Assel. The action was brought against Anna Assel, and experts testify that it is not her signature; besides it does not appear to the court to be her signature.

It is not necessary to consider other questions involved in the case and argued to us, for even if plaintiff in error is correct in all of these, ¡ the judgment would have to be affirmed on the ground that the evidence tails to show that he has a cause ot action against Anna Assel.  