
    BRIN v. GALE.
    (Court of Civil Appeals of Texas.
    March 18, 1911.
    Rehearing Denied April 8, 1911.)
    1. Evidence (§ 197) — Handwriting — Comparison — Basis.
    An extrinsic document not relevant to any of the issues in an action on a note, though containing defendant’s genuine signature, both admitted and proved, was inadmissible as a basis for comparison of handwriting to prove that the note sued on was signed by defendant, which he denied.
    [Ed. Note. — -For other cases, see Evidence, Cent. Dig. §§ 681, 68iy2 1 Dec. Dig. § 197.]
    2. Evidence (§ 197) — Handwriting — Comparison.
    The rule that it is not competent to prove handwriting by comparison is applicable, except that the jury may examine papers already before them in the case to determine for themselves whether the writing in controversy is genuine.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 681, 681%; Dec. Dig. § 197.]
    3. Trial (§ 260) — Requested Charge — Instructions Given.
    It is not error to refuse a requested charge fairly embraced in the instructions given.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    Appeal from Kaufman County Court; Thos. R. Bond, Judge.
    Action by Edward Brin, as executor, etc., of the estate of P. Brin, deceased, against James Gale. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    C. M. Crumbaugh, for appellant.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BOOKHOUT, J.

This suit originated in the justice court of precinct No. 3, Kaufman county, Tex., the original plaintiff being P. Brin, who brought suit on a promissory note for $128, dated September 16, 1908, due six months after date, with 10 per cent, interest from maturity until paid, said note being signed by tbe defendant James Gale and payable to one E. H. Rice. Before tbe case came on for trial, tbe plaintiff, P. Brin, died, and Edward Brin duly qualified as tbe executor of bis estate. June 14, 1909, tbe death of P. Brin was suggested to tbe court, and leave granted for Edward: Brin, executor, to be made a party plaintiff. Tbe ease was tried in tbe justice court on pleadings as follows: Plaintiff pleaded tbe note sued on, and alleged that it bad been purchased from one E. H. Rice, the payee, for a valuable consideration before maturity by bis intestate, P. Brin; that same was past due and unpaid, and prayed for judgment for bis debt, interest, and costs. Defendant Gale pleaded that tbe note sued on was not executed by him, nor by bis authority; that he bad never ratified or confirmed its execution, and that it was without consideration; that plaintiff’s intestate obtained same without paying a valuable consideration therefor, and not in the due course of trade, and with full notice of tbe vices and fraud contained in such note. This pleading was sworn to. He also pleaded the general denial. Tbe cause being tried before a jury, a verdict was rendered for tbe defendant Gale, and plaintiff appealed to the county court. On tbe 24th day of January, 1910, the case was tried in said county court upon tbe same pleadings and judgment again rendered for the defendant. Plaintiff in due time filed his motion for a new trial, and, the same being overruled, be excepted and perfected bis appeal to this court.

It is assigned that tbe court erred in excluding from tbe consideration of the jury the note signed by defendant, Gale, payable to John Olay, said note having been admitted to bear tbe genuine signature of defendant Gale by tbe said defendant himself when on tbe witness stand, and having been further proven to bear tbe genuine signature of said defendant by. the testimony of B. L. Gill, who swore that be saw defendant Gale sign tbe same. The proposition presented under this assignment is that extrinsic documents may be admitted in evidence and examined by tbe jury for tbe purpose of comparison to prove bandwriting, when the signature to said extrinsic documents is admitted by tbe opposite party to be genuine, or is proven by tbe best evidence to be genuine. This note was payable to John Olay and signed by James Gale, and was offered in evidence for tbe purpose of having tbe jury compare tbe signature thereto with tbe signature to tbe npte sued on. James Gale admitted that be signed tbe note payable to John Olay, and B. L. Gill testified be saw Gale sign the Clay note.

The question presented is, Was the note payable to John Olay admitted by Gale to have been signed by him admissible in evidence for tbe purpose of enabling the jury by a comparison of the signature thereto with tbe signature to tbe note sued on to determine whether it bears tbe genuine signature of James Gale? We think not. Tbe rule in England is that it is not competent to prove bandwriting by a comparison of bands. Tbe authorities in this country are conflicting. Tbe English rule seems to have been adopted in this state. Such was the bolding of our Supreme Court in tbe able opinion of Judge Donley, in tbe case of Hanley v. Gandy, 28 Tex. 211, 91 Am. Dec. 315. This rule has been so far modified as to permit tbe jury from an examination of papers before them and already in tbe case to determine for themselves whether tbe writing in controversy is genuine. Kennedy v. Upshaw, 64 Tex. 411. However, papers, although they contain the defendant’s genuine signature, but which are not otherwise relevant to the case, are not admissible in evidence as a basis of comparison to prove tbe genuineness of tbe defendant’s signature to tbe note in suit. Cook v. First Nat. Bank, 33 S. W. 998. We conclude tbe court did not err in refusing to .admit the note in evidence.

The sixth assignment of error reads: “The court erred in refusing to give tbe following special charge asked by plaintiff: ‘You are charged that the effect of the failure of James Gale to answer interrogatory No. 2 propounded to him in the depositions taken November 22, 1909, and read in your bearing, is to admit that be did sign tbe note sued upon. Therefore, if you believe from tbe evidence that plaintiff’s intestate, P. Brin, purchased said note from E. H. Rice before maturity for a valuable consideration, you will find for tbe plaintiff’ — because said charge stated tbe law of the case and should have been given.” It was not error to refuse this charge. It was fairly embraced in tbe court’s charge. Tbe court admitted interrogatory No. 2 propounded to James Gale in evidence, and instructed tbe jury in bis main charge, as follows: “In this case tbe plaintiff. on tbe 22d day of November, 1909, caused to be filed herein and propounded to tbe defendant interrogatories, in which tbe defendant was asked this question, ‘In this ease you are being sued for the amount due on a promissory note signed by James Gale and given to one E. H. Rice, and transferred by said Rice to Brin, said note being dated September 16, 1908, due six months after date for tbe sum of .$128, and bearing 10 per cent, interest from maturity until paid. It is a fact, is it not, that you signed and delivered to Rice this note?’ which interrogatory tbe defendant refused to answer, and you will consider such refusal as a confession of tbe matters sought to (be) elicited by said interrogatory in connection with all tbe other-evidence in this case.”

It is insisted that the verdict of tbe jury is wholly unsupported by tbe record, and' that for this reason the court erred in overruling appellant’s motion for new trial. We-overrule this contention. There is evidence to support the verdict of the jury, and we do not feel authorized to set aside their finding.

Finding, no reversible error in the record, the judgment is affirmed.  