{ "id": 858582, "name": "Thomas Woolverton v. E. C. Sumner", "name_abbreviation": "Woolverton v. Sumner", "decision_date": "1894-02-16", "docket_number": "", "first_page": "115", "last_page": "118", "citations": [ { "type": "official", "cite": "53 Ill. App. 115" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "133 Ill. 485", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "34 Ill. App. 325", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4997618 ], "opinion_index": -1, "case_paths": [ "/ill-app/34/0325-01" ] }, { "cite": "16 Ill. App. 133", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 854314 ], "opinion_index": -1, "case_paths": [ "/ill-app/16/0133-01" ] }, { "cite": "3 Brad. 253", "category": "reporters:state", "reporter": "Bradf.", "opinion_index": -1 }, { "cite": "32 Ill. 387", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2454593 ], "opinion_index": -1, "case_paths": [ "/ill/32/0387-01" ] }, { "cite": "86 Ill. 570", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2772088 ], "opinion_index": -1, "case_paths": [ "/ill/86/0570-01" ] }, { "cite": "83 Ill. 199", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2661076 ], "opinion_index": -1, "case_paths": [ "/ill/83/0199-01" ] }, { "cite": "120 Ill. 503", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5384844 ], "opinion_index": -1, "case_paths": [ "/ill/120/0503-01" ] }, { "cite": "71 Ill. 109", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311238 ], "opinion_index": -1, "case_paths": [ "/ill/71/0109-01" ] }, { "cite": "78 Ill. 159", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "129 Ill. 599", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2964047 ], "opinion_index": -1, "case_paths": [ "/ill/129/0599-01" ] }, { "cite": "48 Ill. 142", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5227498 ], "opinion_index": -1, "case_paths": [ "/ill/48/0142-01" ] }, { "cite": "41 Ill. 141", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5216803 ], "opinion_index": -1, "case_paths": [ "/ill/41/0141-01" ] }, { "cite": "18 Ill. 228", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 438649 ], "opinion_index": -1, "case_paths": [ "/ill/18/0228-01" ] }, { "cite": "1 Gilm. 556", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2466433 ], "opinion_index": -1, "case_paths": [ "/ill/6/0556-01" ] }, { "cite": "133 Ill. 300", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5427695 ], "opinion_index": 0, "case_paths": [ "/ill/133/0300-01" ] }, { "cite": "48 Ill. 142", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5227498 ], "opinion_index": 0, "case_paths": [ "/ill/48/0142-01" ] } ], "analysis": { "cardinality": 430, "char_count": 7057, "ocr_confidence": 0.505, "pagerank": { "raw": 7.226684795779869e-08, "percentile": 0.4313732190564006 }, "sha256": "8787c79e53b3aa19f75db07cf224ba58884905faf3d8f2004673eccfb1220b67", "simhash": "1:bbbd507719ec2ca5", "word_count": 1248 }, "last_updated": "2023-07-14T16:03:00.879097+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Thomas Woolverton v. E. C. Sumner." ], "opinions": [ { "text": "Mr. Justice Pleasants\ndelivered the opinion of the Court.\nSuit originally before a justice of the peace by appellant, an assignee, for value, before maturity, upon what purported to be a promissory note of appellee to John O\u2019Kane for $170. The trial in the Circuit Court, on appeal, resulted in a verdict and judgment for appellee. All needful motions were interposed and exceptions to the ruling thereon taken by plaintiff, who brings the record here and assigns errors on the admission and exclusion of evidence, the giving and refusing of instructions, the overruling of the motion for a new trial and the rendition of judgment for the defendant.\n. The defendant, by affidavit, denied the execution of the instrument sued on. This and the question of ratification were the only issues submitted to the jury. The evidence on each was conflicting and irreconcilable. That introduced by plaintiff, standing by itself, was abundantly sufficient to require a verdict in his favor; and that introduced by defendant, standing by itself, was no less sufficient to compel the one that was found; nor was it meager on either side. On both there were a number of witnesses, and the evidence on each side was both direct and circumstantial. It would be entirely useless to state it or the substance of it. We should not overrule the conclusions reached by the jury, unless there was material error in the ruling of the court.\nThose alleged and urged that need be noticed, are that the wife of the payee and assignor was not allowed to testify at the instance of plaintiff; that the jury were not instructed; that defendant, who in his testimony had declared the instrument a forgery, to maintain the issue on his part under the defense of non est factum, was bound to prove it a forgery beyond a reasonable doubt; that defendant was allowed the advantage of his ignorance of the law upon the question of ratification; and that the motion for a new trial should have been sustained on the showing made of newly discovered evidence.\nThe first of these rulings was justified by Craig v. Miller, 133 Ill. 300, expressly overruling that of Gravel Road Co. v. Midans, cited for appellant. Her husband was directly interested. His assignment of the note for value absolutely implied a warranty that it was genuine, and the witness was called to prove it was so.\nOn the second, by Sprague v. Dodge, 48 Ill. 142. The charge of forgery was not made in any pleading. Defendant did not appear before the justice of the peace. In the Circuit Court he filed an affidavit stating that \u201c he denies that he executed the note in question upon which the plaintiff has brought the above suit, and that the same is not his note.\u201d Plaintiff was the assignee, not the payee. Ho charge is made against him, even by the affidavit, which is not a pleading, nor any criminal charge against the payee, who was not a party to the suit. We understand that upon a plea of non est factum, verified by such an affidavit in a court of record, the issue is to be found according to the preponderance of the evidence, or rather that if plaintiff fails to prove the execution of the instrument, or its adoption by the defendant, by a preponderance of the evidence, the defendant is entitled to the verdict, though the testimony for him tends to show a forgery, and the plaintiff is the payee.\nAs to the third, the fact is not as assumed. The defendant testified that he was told he was liable even if it was a forgery, because plaintiff was an innocent holder, and thereupon said that if he was liable he would pay without suit, but would consult his lawyer on the question of his liability; and that was all the promise of payment that he made.\nThe newly discovered evidence set forth was clearly cumulative and inconclusive.\nPerceiving no material error in the record, the judgment will be affirmed.", "type": "majority", "author": "Mr. Justice Pleasants" } ], "attorneys": [ "Appellant\u2019s Brief, E. R. E. Kimbrough and J. H. Dyer, Attorneys.", "Appellee\u2019s Brief, Salmans & Draper, C. A. Allen and Chas. L. Chamberlin, Attorneys." ], "corrections": "", "head_matter": "Thomas Woolverton v. E. C. Sumner.\n1. Married Women\u2014When Not Competent Witnesses.\u2014The wife of a payee and assignor of a promissory note is not competent to testify at the instance of plaintiff in a suit to collect the same.\n2. Burden of Proof\u2014Plea of Non Est Factum Verified.\u2014Upon a plea of non est factum verified by an affidavit in a court of record, the issue is to be found according to the preponderance of the evidence.\nIf plaintiff fails to prove the execution of the instrument, or its adoption by the defendant, by a preponderance of the evidence, the defendant is entitled to the verdict, though the testimony tends to show a forgery.\n3. Ratification\u2014 What Does Not Amount to.\u2014Where a person whose signature appeared to a promissory note was told he was liable even if it was a forgery, because the plaintiff was an innocent holder, replied, if he was liable he would pay without suit, but would consult his lawyer on the question of his liability, it was held not to be a ratification.\n4. New Trial\u2014Newly Discovered, Evidence.\u2014Newly discovered evidence which is clearly cumulative and inconclusive, is not a sufficient ground for a new trial.\nMemorandum.\u2014Assumpsit on a promissory note. Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the November term, 1893, and affirmed.\nOpinion filed February 16, 1894.\nThe opinion states the case.\nAppellant\u2019s Brief, E. R. E. Kimbrough and J. H. Dyer, Attorneys.\nAppellant contended that the filing of the affidavit denying the execution of the note and alleging the same to be a forgery in an action brought before a justice of the peace amounts to a \u201c charge in the pleadings of the commission of a criminal offense,\u201d and that in such case the offense charged must be proven beyond a reasonable doubt. Crandall v. Dawson, 1 Gilm. 556; McConnell v. Mutual Ins. Co., 18 Ill. 228; Harbison v. Shook, 41 Ill. 141; Sprague v. Dodge, 48 Ill. 142; Germania Ins. Co. v. Klewer, 129 Ill. 599.\nIf a person whose name is signed to a forged note, with full knowledge of all the material facts, ratifies the note and agrees to pay it, he is bound as fully as though the signar ture were genuine. Paul v. Berry, 78 Ill. 159; Gleason, Adm\u2019r, v. Henry, 71 Ill. 109; Ehrler v. Brawn, 120 Ill. 503; Kerr v. Shary, 83 Ill. 199; Reynolds v. Ferree, 86 Ill. 570; Livings v. Wiler, 32 Ill. 387.\nAppellee\u2019s Brief, Salmans & Draper, C. A. Allen and Chas. L. Chamberlin, Attorneys.\nIn the language of this court\" in Flynn v. Gardner, 3 Brad. 253, \u201c The statute allowing husband and wife to testify for each other in certain cases is in derogation of the common law, and the parties can not avail themselves of its privileges unless they come within its provisions.\u201d Does this case fall within any of the exceptions mentioned in Sec. 5, Ch. 51, R. S.? Most clearly not. This question has been before this court several times and it has always been held that the wife of a party who was directly interested in the matter in controversy was not a competent witness, although not a party to the record. Miller v. Craig, 16 Ill. App. 133; Craig v. Miller, 34 Ill. App. 325; Craig v. Miller, 133 Ill. 485." }, "file_name": "0115-01", "first_page_order": 111, "last_page_order": 114 }