stated his reasons for concurring in the result:—
In the trial of this cause, there were three questions for the jury, upon which testimony was admissible, and appropriate instructions were necessary.
*1981st. Was the signature of Daniel Day to the note in suit genuine ?
It seems to have been conceded at the trial, that it was not 5 but on this point no questions are reserved by the exceptions.
2d. If the signature was not genuine, was it made by any person authorized by Daniel Day to sign his name upon it, for him ?
Such authority might have, been proved by evidence of express grant; or facts might have been proved, from which a jury could have inferred that such authority had been granted. The report furnishes no evidence of authority expressly given. If there was any evidence, from which a jury could have inferred that such authority was given to any one, it was to Adoniram J. Day. But I cannot concur in the opinion that such authority could have properly been inferred from the silence of Daniel Day when the note was presented to him. If it had purported to be signed by “A. J. Day for Daniel Day,” it would have been otherwise. But it purported to have been signed by Daniel Day himself, and his silence furnishes no ground for the inference that he authorized any other person to sign it for him. The case does not show whether the handwriting was made to resemble his, or whether he examined the signature with sufficient care to have discovered that it was not genuine. And, even if he knew that it was forged, and refrained from disclaiming it, for the purpose of screening his brother from exposure, such impropriety of conduct could not authorize the inference that he had authorized his brother to sign his name. The question on this point is not one of estoppel, but one of authority actually given.
I agree, that the previous conduct and relations of the parties were proper matters of evidence. And, in regard to the other notes, which were admitted, with testimony tending to show that Daniel Day acknowledged them, they might properly have been admitted if it had been proved that his name was signed upon them by A. J. Day, and that he knew that *199fact, at the time of his acknowledgement. Unless his name was signed by his brother, and he examined the notes so as to have known it, his acknowledgement would be no evidence that he authorized his brother to sign his name. Where one indorses frequently for another, it often happens that he does not read a note before signing, and cannot tell afterwards whether he signed a particular note, except by examining the signature. The case furnishes no evidence that the signatures of Daniel Day, upon the other notes, were made by his brother ; or, if they were, that he knew that fact, at the time when it is contended that he acknowledged them. I think, therefore, they should have been excluded; or, if admitted, more specific instructions should have been given.
3d. But, if no actual authority was given by Daniel Day to his brother to sign his name, has he so conducted himself, with the plaintiff, as to be estopped from denying it ? If one acknowledges his signature to a note to be genuine, and the person making the enquiry takes the note on the faith of such admission, he is afterwards estopped from denying the genuineness of his signature. Cooper v. Leblanc, 2 Stra. 1057; Leach v. Buchanan, 4 East, 226. Otherwise he is not estopped. Hall v. Huse, 10 Mass. 39. If, in consequence of such admission, the holder should delay enforcing his claim against another party, and lose security which he might have obtained, perhaps it would be the same as if he had taken the note on the faith of such admission. I am therefore of opinion, not only that the presiding Judge erred in instructing the jury that such admission was an adoption of the note, but I also think he should have instructed them that the defendant was not estopped by such admission from denying the signature, unless the note was taken in consequence of it, or the holder was otherwise injured by being induced thereby to refrain from enforcing it against the other party, when he might have secured it.