
    Frederick M. Wilson, Resp’t, v. Eli B. Law & Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Evidence—Competency oe evidence to discredit a witness. '
    Where the character of a witness for truth and veracity. is assailed on the one hand and defended on the other, by witnesses speaking from general reputation, any fact or facts bearing upon the probability or improbability of his story become material and competent.
    2. Practice on trial—Charge op justice—Error to submit to jury questions raised by neither side.
    It is error for the justice to submit to the jury, by his charge, a question which neither side raised, and as to which the case is utterly bare of proof.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment in favor of the plaintiff, entered upon a verdict rendered by a jury at. the Oneida county circuit.
    
      M. M. Waters, for app’lt; D. Francis Searle, for resp’t.
    
      
       Reversing 7 N. Y. State Rep., 672
    
   Finch, J.

The real issue between these parties was as to the genuineness of the note given by Law to Emory, and: which formed the subject of the action. The defense was forgery. If that note was genuine it was transferred to Sayles before maturity, upon a full and fair consideration and without knowledge on his part of any defect in the security. He thus became a bona fide holder against whom and his immediate transferee no declarations of the payee' and prior holder were admissible. The court so ruled and excluded them all. The propriety of that ruling is questioned on this appeal.

Sayles testified to a purchase of the note by himself and described it as an absolute transfer. He said that Emory owed him five or six hundred dollars for money lent and six or seven hundred dollars for professional services rendered. For this debt he held a mortgage against Emory of $200 and some notes, the balance resting in account. When the note in controversy was transferred, or in consideration thereof, Sayles cancelled and discharged the-mortgage and extinguished the debt, the amount of that was not fixed or certain, and to meet a possible emergency Sayles agreed that if his debt fell short of the amount of the note he would pay Emory the difference.

This agreement did not create a trust, as the learned counsel for the appellant claims, nor did it leave or vest in Emory any interest in the note after its transfer to Sayles. The contract to pay to Emory was part of the purchase price of the transfer, and was, in substance, that Sayles should give Emory for the note its amount with accrued interest by the discharge of the latter’s debt and a payment of the balance in cash. It left Sayles the absolute owner of the note, and Emory in possession of a possible claim for a balance of the purchase price. That the latter viewed his right under the contract as an interest in the note, and assumed to mortgage it as such, simply showed a misapprehension of his real right, and cannot affect the ownership of Sayles. So far, therefore, as any of the excluded proof had no other office or purpose than to assail the plaintiff’s title by means of Emory’s declarations, the ruling at the trial was correct.

But we are inclined to think that some of that proof stood outside of the rule thus enforced, and was admissible upon other grounds. The plaintiff had proved by Mrs. Barnes the origin and inception of the note, and, as a consequence, that it was genuine and not a forgery. In the face of that evidence, if admitted to be true, the defendant’s proof founded upon the handwriting of the signature, ; was of very little consequence. It was, therefore, vitally important to the defense to disprove or throw doubt upon the story which she told. In itself, it was not free from elements of suspicion. She declared that she exchanged farms with Emory, agreeing to pay him in addition §1,100; that she gave a mortgage to Law for that amount, and that he assumed her debt to Emory by giving the latter the note in question. How, that note had ten years to run, with interest, not payable annually, but accumulating until maturity. Why Emory should have preferred it to Mrs. Barnes’ mortgage, upon which naturally the interest would be payable annually, we do not know and cannot readily imagine. If she was willing to give the security to Law, she would have been willing to have given it to him, and the motive for his choice is not readily discernible. The mortgage to Law was not put in evidence, for some unknown reason, but the fact of its actual existence is perhaps fairly inferrable from defendant’s omission to show that there .was no such record. The deed from Emoiy to Mrs. Barnes was produced," and its date is found to be March, 1866, or eight years before the note in question was given, so that the debt of Mrs. Barnes to Emory must have remained unpaid and unsecured for that long period of time, and until the mortgage was given to Law, and his note to Emory.

In that shape of the case the counsel for the defendant offered in evidence a release of all demands executed by Emory to Law on February 28, 1874, and a note from Emory to Law dated four days earlier for §221, payable with interest in one year. These papers preceded the note in controversy, which was dated April 7, 1874, by a little more than one month. They served to show that at the earlier date all accounts between Law and Emory had been settled, and the latter remained debtor in the amount of his note. When, therefore, Law took Mrs. Barnes’ mortgage, and promised to pay Emory eleven hundred dollars he already held the latter’s note for $221, and one would naturally suppose would have deducted that debt from the note he was about to give. And yet, if Mrs. Barnes’ story is true he gave his own negotiable note for eleven hundred dollars, having ten years to run, and quite sure to be transferred so as to cut off his own offset without applying upon his debt to Emory the latter’s debt to him. Emory, to say the least, was a man of doubtful responsibility, whose note was not very likely to be paid, and it is not altogether easy to understand how the transaction could have taken the shape which Mrs. Barnes describes. Of course, it cannot be said that her account of it was impossible, but I am sure that the circumstances of the release and the note slightly antedating the transaction in -dispute was quite material and bore upon the truth of Mrs. Barnes’ evidence. Her character for truth and veracity was assailed on the one hand and defended on the other by witnesses speaking from general reputation, and any fact or facts bearing upon the probability or improbability of her story became quite material. The trial court rejected the release and the note under defendant’s exception. That seems to have been done because Sayles was a bona fide holder, but that circumstance does not touch this question. If the evidence offered had been material solely to show a failure of consideration, the court would have been right in rejecting it; and it is quite possible that the purpose of the evidence was supposed by the court to be that only. But it was offered as bearing upon the question of consideration, that is upon the question raised by the testimony of Mrs. Barnes, which was the only question of consideration existing in the case; and the proof offered bore upon the genuineness of the note itself and upon the inquiry whether it ever had an existence as such.

It is a fact, a situation which was sought to be proved, not a declaration or assertion of Emory; and a fact, too, which antedated the note, and existed before that was made.' And it was one also which bore directly upon the truthfulness of a witness, and of an explanation which were vital to the controversy in hand. We think the evidence thus rejected, should have been submitted to the jury. Its force and effect it is not our province to anticipate or determine.

There was another exception of the defendant which we think was well taken. The proof on the part of plaintiff, was that the signature of the note was in the genuine handwriting of Law, and that was supplemented by the positive evidence of Mrs. Barnes, and Law’s admissions. The proof on the part of the defense was, that, it was not his signature, and genuine checks signed by Law were put into the case to enable the jury to make their own. comparison. Nowhere in the case was there any evidencé, or even a suggestion that Law authorized any one to sign his name to the note for him; and yet the learned judge charged the jury “that a party may just as effectually bind himself upon a piece of paper if he authorizes a party to make it, and if he recognizes the authority of that other party to make it, as though he had made it himself.” To this there was an exception. Nothing in the evidence raised any such question or justified its introduction into the case. Its tendency was misleading. It enabled the jury to shut their eyes to the falsity of the signature, if they should find it false, by guessing that some one else had written the name with the consent and authority of Law. It thus tended to nullify and make unavailing the defendant’s proof in denial of the signature, and in a case where no such application; of an immaterial rule was admissible. For the contest was distinctly rested on both sides on the genuineness of the signature, and there was no warrant for submitting to the jury a question which neither side raised, and as to which the case was utterly bare of proof.

For these errors, the judgment should be reversed, and a new trial granted, costs to abide the event.

All concur.  