This action was on an indemnity bond, claimed to have been given by the defendant Osborn, with *Page 679 others, to secure the plaintiff against a mechanic's lien. The mechanic established his lien against the plaintiff. The plaintiff's damages were proved, by reason thereof, to be above $900, for which the jury on the trial rendered a verdict in his favor. The defendant Osborn, only, interposed a defense. The bond sued on was lost, and the only questions on the trial and on the appeal are: 1st. Whether the proof of loss was sufficient to authorize the admission of secondary evidence of its contents; and, 2d. Whether the proof of its execution as to the defendant Osborn, was sufficient in law. The plaintiff had been prosecuted by the mechanic, whose lien was enforced, and on that trial the bond in question was used before the referee, and was handed to one of the counsel on that trial for examination, and had never since been seen. The referee, all the counsel, the plaintiff, Naylor, the principal indemnitor in the bond, one of defendants, were all sworn as to the loss. The judge, at the trial, and the court, at General Term, held the proof of loss sufficient to admit secondary evidence of its contents, and, as I think, correctly. And this brings us to the examination of the second and remaining point in the case, whether the proof of the execution of this bond was sufficient as against the appellant.
In looking at the pleadings in the action, I do not think there is, in the answer, a clear denial, by the defendant, of having executed this bond. The complaint alleges "that the defendants herein, made, executed and duly acknowledged, under their hands and seals, and delivered to the plaintiff, their bond, c." The only answer interposed to this allegation, by the defendant, is, that he "shows to the court that he denies each and every allegation in said complaint contained, c." I do not think this is equivalent to a general or specific denial of the material allegation of having made, executed, acknowledged and delivered this bond. He does not deny the making and execution and delivery of the bond, and swear to his denial; but he says that he shows he denies, and swears to the truth of that; that is, he swears that he says he denies. I do not think perjury could be assigned for the falsity of such an affidavit. The affidavit would be true, *Page 680 that he shows that he denies. This may be too technical a criticism, for it may be that no ingenious evasion was intended; but we ought not, I think, to sanction this as a good precedent for an answer by way of denial of a material allegation, but suppose this to be an unjust criticism.
On the trial there was but one witness called to prove the genuineness of the execution of this bond by the defendant Osborn. This was Mr. Parsons, an attorney and counselor-at-law, who was counsel for Naylor (one of the defendants in this action) in the mechanic lien suit. He testified to having prepared such a bond for execution; that he had it among his papers on that trial; that it then purported to have been signed and executed by three defendants, including Osborn; that he saw it several times during the trial, c. After a long examination as to its loss, he was examined as to the genuineness of the signature of Osborn, he having said the bond was signed by Naylor, Osborn and Calrow.
Mr. Parsons testified that he had seen Osborn's handwriting on several occasions; that Osborn was at his office and executed one or more papers on several occasions, in behalf of Naylor, in several matters, and his recollection was, that he saw him execute several papers. "Q. Did you know the handwriting? A. I thought I did. Q. Do you say now that you did? A. I think I did know the handwriting of Osborn. Q. You recognized that bond as being signed by him, and by Calrow and Naylor? A. Yes, sir; and by Naylor." The witness further testified: "That was my best recollection, that I have seen Osborn write in my office on one or more occasions when he came to execute papers, and I became acquainted to that extent with his signature at that time, and recognized this at the time as a genuine instrument." Upon his cross-examination, Mr. Parsons testified that he had no recollection how often he had seen Osborn write; that he could not positively say that he had seen him write three times. "Q. Can you say now that you know his handwriting? A. I think I should know his handwriting if I saw it. Q. Could you tell it from a tolerable imitation? A. I am not an expert in signatures; if there *Page 681 was a good imitation I should call it his, and so of anybody's else. Q. Are you sufficiently familiar with his handwriting to discriminate between a genuine and a tolerable good imitation of the signature? A. No, sir; I do not know that I am."
Here was an intelligent witness; an attorney and counselor-at-law, who had seen the defendant write on several occasions, in his office, in giving his signatures to papers, and in that way, and to that extent, he had become acquainted with his signature, and upon that knowledge expressing a belief of the genuineness of the signature. This was sufficient in any court to sustain a judgment founded upon it. True, Osborn was sworn and says he never signed any bonds but those entered upon a memorandum, which he produced, and this bond was not on that memorandum; but this only created a conflict of evidence which made it necessary to submit it to the jury to determine the truth. It was so submitted, properly submitted, and the jury found that the defendant had executed the bond. If this verdict was against the weight of evidence, the true relief should have been applied for to the judge who tried the action upon his minutes for a new trial, on the ground that the verdict was against the weight of evidence. No such application was made; but an appeal was made to the General Term, from whose majority opinion, it is seen, that a new trial was ordered, upon the ground that the evidence to prove the execution of the bond was insufficient.
As this must be a question of law, it is to be examined only upon that view. As a question of law, it can only be presented upon the proposition: Was there sufficient proof of its execution to have that question submitted to the jury? The General Term had no right to reverse; this court will not disturb the verdict, on account of the finding of the jury, if the proof was sufficient to be submitted to them.
I suppose the rule in this regard is, that when a party has offered all his proof upon the point, the question is then presented for the court to rule, whether it is sufficient to go to the jury. This was done in this case; the objection was made; the court decided it to be sufficient. Was this ruling error? *Page 682
Greenleaf, in speaking of the modes of acquiring knowledge of handwriting (Greenl. Ev., vol. I, § 577), says: "The first is, from having seen him write. It is held sufficient for this purpose that the witness has seen him write but once, and then only his name. The proof in such case may be very light, but the jury will be permitted to weigh it." In support of this proposition he cited in a note the case of Garrells v.Alexander (4 Esp., 37). The witness in that case was called to prove the signature to a bill of exchange; he had never seen the witness write but once, and that was his signature to the bail bond in the case. He was asked his belief as to the genuineness of the signature to the bill in question. He said he could form no belief; it was like the handwriting on the bail bond. He was about to compare them, and Lord KENYON refused to allow him to do so, and told him he must form his judgment without comparison of hands. The witness again looked at the bill of exchange, and said it was like the handwriting on the bail bond, but could speak of no other belief than he had expressed. It was objected that this evidence was not sufficient, and would be of dangerous consequences to allow such loose evidence of handwriting to charge a party with a debt. Lord KENYON said: "I think there is evidence to go to the jury, and that I am bound to leave it to them."
Phillipps, in his Treatise on Evidence, 365, speaking of this kind of proof, says: "Like all probable evidence it admits of every possible degree, from the lowest presumption to the highest moral certainty." But whatever degree of weight his testimony may deserve, which is a question exclusively for a jury, it is an established rule, that if he has seen the person write, he will be competent to speak to his handwriting."
In Eagleton v. Kingston (8 Ves., 473, 474), Lord ELDON discusses the rule in chancery (in the year 1803), which he said was the same in courts of law. After repudiating, as authority, some late cases, which had admitted of evidence by comparison of handwriting, he says the later cases have brought the law back to what it was twenty-five years ago, which was: *Page 683 "You called a witness and asked whether he had ever seen the party write. If he said he had, whether more or less frequently; if ever; that was enough to introduce the subsequent question, whether he believed the paper to be his handwriting. If he answered, he believed it to be so, that was evidence to go to the jury."
Cow. Hill, in note 913, lay down this proposition: "If the witness' knowledge appears to have been derived from proper sources, its degree respects the credence to be awarded to what he says, rather than its competency." This is, doubtless, the true rule, and the question of credence is a question which a jury, and not the court, should determine. I am not aware of any change in the rule as established by the authorities above cited. The plaintiff produced competent evidence to be submitted to a jury; it was his right to have that body pass upon that question, and it was so submitted and passed upon according to the long established and uniform practice of the courts; the finding of the jury upon the fact on a review is conclusive. It was, I think, an unusual and improper exercise of power by the General Term to reverse that finding. I am, therefore, of opinion that the judgment of the General Term should be reversed.
Judgment of the General Term reversed, and a judgment on the verdict ordered. *Page 684