On Motion for Rehearing.
Upon the trial defendant objected to that portion of the testimony of witness Patterson to the effect he kept the seven notes in suit here in a drawer in his office along with another note for $100- in favor of one Jim Smith, and all of those notes were abstracted from his office during his absence for a very short time on an errand to, another office in the town of Cooper. He further testified that he saw defendant Wells sign the $100 note, which, in his opinion, was the same as his purported signatures to the seven notes in suit. Counsel for defendant objected' to that opinion of the witness, based on comparison of signatures, because since all the notes had been lost they could not be submitted to the judge or jury for such comparison of signatures; as provided by Art. 3737b of Vernon’s Texas Civil Statutes, and as construed in the opinion of the Commission of Appeals in Gibralter Colorado Life Co. v. Taylor, 123 S.W.2d 318. And that point is stressed in appellant’s motion for rehearing.
No assignment of error is presented to that ruling, but the same, with exception thereto, is urged in support of his proposition No. 3, reading: “Appellant having denied the execution of the notes under oath, the trial court erred in instructing the jury to return a verdict for.appellee where the only' evidence as to the execution of said notes was the uncorroborated evidence of appellee.”
As pointed out in our original opinion, the witness Patterson further testified that before the notes were abstracted from his office, defendant, on several occasions, came to his office, inspected the notes and offered to settle the same by a reconveyance to the payees of the property for which the notes were given; never at any time denying his signature to the notes. And, further, that he kept all the notes in a drawer to his desk plainly in view of defendant; that he was expecting defendant back to his office on the day the notes were abstracted, for further negotiation relative to his proposed settlement of them, and that when he left his office on that occasion the drawer of his desk, in which the notes were kept, was partially open. There was no testimony or circumstance suggestive of a possible motive , for any third person to carry away the notes.. The judgment recites the appearance of the defendant at the trial; and his failure to take the witness stand at all and deny any of the facts testified to by Patterson, to the effect that defendant recognized as genuine his signature to the notes when he saw them in Patterson’s office — to say nothing of his failure to deny that, it was he who abstracted the notes from Patterson’s office — was prima facie sufficient of itself to overcome defendant’s plea of non est factum. 17 Tex.Jur. par. 87, page 306, and decisions there noted. At all events, that testimony of Patterson, and the inferences deducible therefrom, tended strongly to corroborate the testimony of the plaintiff that the signatures to the notes, were those of defendant. Indeed, in the absence of any contrary showing that evidence, coupled with that of plaintiff, was conclusive proof as a matter of law that defendant did execute the notes in controversy; and warranted the instructed verdict for plaintiff. It follows, therefore, that even if the opinion of Patterson that the purported signatures of defendant to the notes in controversy were the same as that to the $100 note was incompetent and therefore should be excluded from consideration on this appeal, nevertheless, appellant’s proposition noted above, that there was no corroboration of plaintiff’s testimony that the signatures of defendant to the notes in suit were genuine, cannot be sustained. General Motors Acceptance Corp. v. Boyd, Tex.Civ.App., 120 S.W.2d 484.
The motion for rehearing is overruled.