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ductor and porter, servants of the sleeping

able

among all the cases holding such to be car company, are also servants of the rail the law, is their wonderful similarity both as road company, which must answer for them to the subject matter for which the notes were as for their other servants. The passenger

The passenger given, and the frauds practiced in obmay therefore have two remedies for loss or taining them. Patent wire fences," patent robbery on a sleeping car, one against the wagon tongue supporters, patent sulky sleeping car company, the subordinate, the wheel cultivators, 4 patent screw hay fork,5 other against the railroad company, the su

patent family medicines, patent seed drill,? perior.

patent plows, patent pruning shears,9 patent washing machines, 19 patent churns," patent clothes wringer, etc; were the articles

for which the unsuspecting victim was perEXCUSABLE NEGLIGENCE WIAT suaded to take an “agency,” and then rely

WILL RELIEVE THE MAKER OF A NE ing upon the honesty of the agent signed
GOTIABLE INSTRUMENT FROM HIS (what he supposed contract of "agency,”') a
LIABILITY TO A BONA FIDE PUR note without reading it.
CHASER.

To carry the similarity of these actions

farther it will be found that in almost every I Introductory.

instance the unsuspecting farmer is the vicA. Law as it now exists. B. Maxim. If one of two persons must suffer etc.

tim. Having about exhausted the patent as interpreted by some courts.

right fraud, the ingenious swindlers are now II. Signing name to a note when intending to sign some other instrument of writing.

dealing in Bohemian Oats and Red-line 1. Relying upon the statements of others as to

Wheat etc. what it is.

The law says that in these cases the maker 2. Different Views. A. First View.

of the note is not liable even to a bone fide B. Second View.

holder if guilty of no negligences in attaching C. Third View. III. Signing with the intention of signing a note but

his signature ; and that whether or not there deceived as to its amount.

was such negligence is a question of fact for 1. How different courts draw distinction.

the jury under proper instructions of the A. Instances. IV. Signing and not reading because unable to read. court. V. Other circumstances which will relieve the maker.

B. But how can a person attach bis signaVI. Reason why no general rule can be drawn. ture to a negotiable instrument and not as a

matter of law be guilty of negligence? It is I. Introductory.--A. Where it is shown at a well known principle of law that when one the time of the signing and delivery of the of two innocent persons must suffer, he who note that the maker was induced by fraudu has committed acts, without which acts the lent representations as to the character of the wrong could not have been done, and by the paper, to believe that he was signing and de aid of which acts the wrong was done, he livering an instrument other than a promis who has committed such acts, enabling the sory note, or when he intends to sign a prom wrong to be done, must suffer. No one will, sory note but is fraudulently tricked into or can question the justice of this rule. For signing a different note from that which he in what reason should the maker of a negotiatended, if his conduct in signiug the instru ble instrument not be judged by this rule. ments was not attributable in whole or in part to his own negligence in the premises,

2 Ort v. Fowler, 31 Kan. 478. he is not liable even to bona fide holder. 3 Super v. Peck, 51 Mich. 563. Such is the law of perhaps the majority of

4 Anderson v. Walter, 34 Mich. 113.

5 Cline v. Guthric, 42 Ind. 230; Gibbs v. Linsabury, the courts. The doctrine, is of new and re 22 Mich. 483. cent date, in 1869 the leading case of Foster

6 Williams v. Stoll, 79 Ind. 80.

7 Ross v. Doland, 29 O. St. 475. v. Mackinnon' was decided, and it may be 8 Winchell v. Crider, 29 0. St. 481. classed as the first; and what is very remark 9 Perkins v.White, 36 0. St. 531.

10 Nat'l. Bank v. Johns., 22 W. Va. 300; Phelan v.

Moss, 67 Pa. 67. 1 L. R. 4 C. P. 704. Bigelow on Notes and Bills.

11 Auten v. Gruner, 90 11. 301.

Why should it not be said as a matter of The other class which holds that there may law, that as he attached his name to the in be circumstances which will excuse the maker strument and thereby brought it into exist where his signature is genuine, arrive at this ence, and thus gave the means of committing conclusion from different reasons and in difthe fraud, the maker should bear the loss, ferent ways, and it is to this class of deand not the bona fide holder.

cisions that the remarks of this article are But the Supreme Court of Michigan,12 has addressed and we will now proceed to coninterpreted the maxim and says that it does sider the different views and the decisions unnot apply to this kind of cases. This Court der them. says, that the maxim supposes the action of

2. Different Views.-A. One view is that the persons upon whom it imposes the loss to

as the maker never intended to execute the have proceeded from intelligence, and not to

bill or note, it can not be considered his act, have been the result of duress. It presumes and he should not be held liable thereon, any the assent of the will of the actor. If from

more than if his name had been forged to any cause, the assent of the will is wanting,

such instrument. the result is the same as if the act were done

The best exposition of this view, perhaps, is under duress, or by an insane man.

the case of Gibbs v. Linabury, 14 where the C. While this may be a true exposition of

court says; “When the defendant unwittingthis maxim under the views of that court yet

ly signs an instrument in the form of a neit does not appear plain to me, why a person,

gotiable promissory note, relying upon false able to contract and not under duress is not

representations made to him at the time, that guilty of negligence, as maker of a promis

the instrument he is signing is a mere duplisory note, to a greater extent, then a bona

cate of a contract just previously signed by fide holder.

him, making him an agent for the sale of a Not being able to see how the maker could

patent hay fork, under circumstances devoid attach his signature and not be guilty of neg

of any negligence on his part, and where ligence. I have used the term “Excusable

fraudulent means are taken to prevent him negligence” as being a more appropriate term

from noticing the body of such pretended to apply to those cases where the maker has

duplicate, and he delivers the same in ignobeen held not liable to a bona fide holder of

rance of its true character, believing it to be his negotiable paper which bears his signi

a mere duplicate contract which he supposed ture.

he had signed, such instrument is to be reII. Signing Name with the Intention of

garded as a forgery, and can not be enSigning an Instrument of Writing other than a

forced” in the hands of a bona fide purchasPromissory Note.-1. What diligence must the

In Anderson v. Walker 15 the following maker of a promissory note use in attaching language is used. “If the defendant never his signature? Will the mere relying upon the

intended and never agreed to sign a note or reading and word of a stranger be such

give one, and did not suppose or believe he negligence as will make the party so relying

was signing one, but was in fact only to sign, liable for the amount of the note in the hands

and believed he only was signing, the paper of a bona fide holder? If able to read, must

he had heard read, appointing him agent to he read it, or if unable to read must he have

sell cultivators, it is somewhat difficult to see it read to him, and if so, who must he have to

how be could be held liable upon this note; read it to him? A person is betrayed or tricked into signing something which he never

and it is equally difficult to see how a man

signing under such circumstances and belief intended to sign, who is liable? Courts are not united npon their answers to these ques

could at the same time be considered neglitions nor in their reasons for them. One

gent. If he had not agreed to sign a note, class of courts holds that if the makers signa

but to sign, and believed he was signing, ture is genuine, no circumstances except per other papers, which he had heard read, and haps duress and ability to contract, will excuse him. 13

511 and cases there cited. Daniel on Neg't Instru

ments $ 850. 12 Supra, 5.

14 Supra, 5. 13 National Bank v. Johns, 22 W. Va. 506; 46 Am. R. 15 Supra, 4.

er.

which in no way resembled in size or appear In Soper v. Peck,18 it was shown that there ance a note, and which by no possibility was nothing said whatever about a note, that could be tortured into a' negotiable instru the agent informed him (deft.) that it was; ment, or by any ordinary change converted "Nothing more than a statement that he into one, he could not be guilty of negligence in wanted to send to the company to let them so signing, even if it afterwards turned out in know who was their lawful agent,” that he some mysterious manner that one of the pa signed the paper in an ordinary sized note pers he supposed he was signing was a note. book; it was opened out like a note book ; Under such circumstances he had no inten that he sat down by the gate post and signed tion of signing a note, but an instrument of it, and the man said nothing to bim while he an entirely different shape and tenor; that it was signing it, and that he took the book in should turn out to be a note would certainly his own hands when he signed it; that he be through no fault or caution, or want of could have gone to the house and got his caution on his part.”

spectacles and examining the paper if he a. These courts lay down the further pro wanted to; that he supposed it was just as position of law that when a party to an instru the man represented, and it was not necesment undertakes to read it over in the pres sary. In reviewing this case the Court

says; ence and hearing of the party thereto, in or “It can not be disputed but that the evidence der that he may understand its contents be of the defendant tended to show that he had fore signing it, the party reading is both leg a fraud practiced upon him, and that very ally and morally bound to read it correctly, probably he had put his name to a note when and that the other party has a right to rely he supposed he was signing something entireupon its being so read and need not examine | ly different. If the jury believed this, he was it himself. Ordinarily no negligence can be entitled to their verdict, unless his negligence attributed to one who signs papers, after was so gross as to preclude his making the having so compared them, with further exam defense against a bona fide holder. ination.

The other cases adopting this view are cited b. Instances.-In Atchison v. Taylor, 16 the in the notes.19 signer could not read without great difficulty B. A second view is, that it is always a and he asked the payee's agent to read it for question of fact for the jury whether under him, and he misread it. Held, that the signer the circumstances, the party was guilty of was not liable to a bona fide transferree.

negligence. The court said; “If he is unable to read or

Perhaps the clearest exposition of this view does so with difficulty, then he may avail

is the case of Martin v. Smylie, 20 when it himself of the usual means of information,

was shown that the defendant signed a note by having it read by some person present;

without reading, and it did not appear from while this may not be the precaution which

the testimony that he could not read. The would have been observed by an unusually

court left it to the jury to say whether the cautious man, still we think he acted as the

signature was without fault or negligence and great mass of men not in, or educated to

they found for the defendant which was held business, act, in such cases."

not to be error, by the Supreme Court upon In Griffiths v. Kellogg, 17 the payee's agent

appeal. Hopkins v. Hawkeye Ins. Co.,21 misread the amount of the note to the maker,

may also perhaps be said to come under this a woman; she did not read because she was

class, in which it was said that what constiunable to without her glasses and they were

tutes reasonable care and diligence in the exat the house of a neighbor; two of her chil

ecution of an instrument is a question of fact dren were present who were able to read, but she did not ask them. This was submitted to

18 Supra, 3. the jury and they found for the defendant, 19 Foster v. McKinnon, L. R. 4 C. P. 704; Whitney which was affirmed by the higher court.

v. Snyder, 2 Lans, 477; Citizens Nat'l Bank v. Smith, 55 N. H. 693; 3 Cen. Law Jour. 163; Wait v. Pomeroy, 20 Mich. 425; Detwiler v. Bish, 44 Ind. 78; Walker y.

Egbert 29 Wis. 194. 16 54 III. 196; 5 Am. R. 118.

20 55 Mo. 577. 17 39 Wis. 209; 20 Am. R. 48.

21 57 Ia. 203.

for the jury, and where one trusts to an of precautions within his power, affixes his agent of the payee to read a note correctly, it name to that kind of paper without knowing is not as a matter of law negligence. In this its character, the consequent loss ought not case the defendant was unable read the to be shifted from him to a bona fide purnote on account of the absence of his specta

chaser of the paper. cles. Whether he was justified in relying Tested by this rule, the facts the defendant upon the reading of the agent, and in neglect- offered to prove would have been no defense. ing to call upon his wife or son who were He signed the paper voluntarily. He was present, constitutes not a question of law but under no controlling necessity to sign without one of fact. The question is, did he act as taking such time as might be needed to in

and ordinary care

form himself of its character. persons of reasonable

If he could would usually do under like circumstances.

not read it himself, there was no reason, exIf he did, he was not negligent.

cept perhaps his own convenience or haste,

why he should not postpone signing until he C. A third view is, that as a matter of law

could have it read by some person apon one must be adjudged guilty of such negli

whom he had a right to rely. Instead of dogence as to render him liable who possessed

ing that, he chose to rely upon an entire of all his faculties and able to read, signs a

stranger, the party opposed to him in interest note or bill relying upon the reading of a

and the only person under temptation to destranger that it is a different instrument.

ceive him as to the character of the paper he Perhaps the larger number of the courts

was asked to sign. One who without any neadopt this view.

cessity so misplaced his confidence ought not Chapman v. Rose, 22 may be considered as

to be heard to claim that the paper he is in the leading case adopting this view. This

consequence mislead to sign should be taken was a hay-fork case. The defendant thought, out of the rule protecting commercial paper." and was made so to believe by the agent that

In William v. Stoll,24 the evidence showed he was signing a contract of agency and re

that two strangers came to the defendant's lying upon such statements and belief he

house, where he and his two sons were at signed what afterwards turned out to be a

work; that they wished the defendant to take promissory note. Here the Court says: "If

an agency to put up bills and sell patent it be objectd that there must be a duty of

medicines; that he told the strangers that he care in order to found an allegation of negli

was old and could not read or write, and gence upon the neglect of it, it must be an

could not be their agent. The strangers then swered that every man is bound to know that

said they would appoint his son, who was a he may be deceived in respect to the contents minor, which was finally agreed to. They of a paper which he signs without reading.

then said, as the son was a minor, it would When he signs an obligation without ascer

be necessary for the father to sign the containing its character and extent, which he has

tract, which he did, relying upon the repremeans to do, upon the representations of an

sentations of the strangers. Held, that he other, he puts confidence in that person; and was guily of negligence in not requiring one if injury ensues to an innocent third person of his two sons, who were present and could by reason of that confidence, his act is the read, to read the instrument. means of the injury, and he ought to suffer. In Douglass v. Gnatling 25 the facts were

In Peterson v. Macky 2 it appeared that substantially similar to the above case, exPeterson supposed he was signing a re- cept that it did not appear that there was one ceipt for a plow, it was read to him by the present who could read. The defendant was agent, and read as a receipt; Peterson could held liable. The court observing: “It is not read English and there was no one within better that the defendant, and others who so a half-mile who could do so. Held that he oarelessly affix their names to paper, the was liable to a bona fide, transferree. The character of which is unknown to them, Court said; “Where a party, through neglect should suffer from fraud which their reckless

22 56 X. Y. 137.
23 29 la. 408.

24 73 Ind 518.
25 55 N. H. 593.

name.

ness invites, than that the character of commercial paper should be impaired and the business of the country thus interfered with and unsettled.”

In Ruddel v. Dillman, 26 it was held that where one signs a negotiable note, relying upon the fraudulent representations of the payee that it is something different, and makes no effort to ascertain its tenor, whether he can read or not, he is liable to a bona fide holder.

In Citizens Nat. Bank v. Smith,27 the defendant was an old man of limited education and poor eyesight, and not in the habit of writing, except to sign his

His daughter, an intelligent woman, was present when the note was signed, and had the opportunity to read it, but was not called upon by the defendant to do so, and did not do so. It was held that the defendant was bound by reason of his negligence.

However, in Webb v. Corwin,28 where it appeared that the defendant was very weak, sick, and nervous, and his eyesight was so dim from disease and old age that he could not read either print or writing, and he had lost his glasses, and so told the parties ; that there was no party in the defendant's house at the time but himself and the strangers; that they said they would read it to him, and he relied upon them to read it correctly : that one of them pretended to read the contract to him; and as it was read it purported to be only a conditional agreement. Held that the defendant was not bound.

It has also been decided that the mere finding of the fact that the defendant was unable to read, was not enough, and was not equivalent to a finding that he was free from negligence.?

The decisions under this view are based upon the maxim that where one of two innocent persons must suffer, he who has given the means by which the fraud was committed must suffer, and are in direct opposition in their reasonings, (if not in their results,) to those courts that hold that this maxim does not apply, as will be found in most, if not all, of those which adopt the first view, 30

Space will not permit more than a reference to the other cases adopting the third view. It seems to me if the maker can at all be ex. cused, as between himself and a bona fide purchaser, this view is the preferable one.

III. Signing with the Intention of Signing a Note, but Fraudulently Induced to Sign a Note for a Larger Amount than Intended.-1. The courts adopting the first and second view above designated, have found it necessary to draw a destinction between, where a person intends to sign a note of some kind and where he intends to sign none at all but does sign one, believing at the time that he is signing another kind of a contract. They have been compelled to make the distinction for the reason that where a man willingly attacks his own signature it can not be a forgery.

A. Instances.-In Rowland v. Fowler, 31 it was held that he who signs a note although he misunderstood its effects or was induced by fraudulent representations to execute it, is liable to a bona fide purchaser, irrespective of the question of negligence.

To the same effect is Whitney v. Snyder.32 In Savings Bank v. Steffes 33 the question is "dodged” and Griffith v. Kellogg 34 heretofore quoted from, and Bowers v. Thomas 35 are directly to the opposite. In the latter case the evidence showed that the defendant could not read the instrument he was called upon to sign ; that the other signer was the father of the person for whose benefit the note was made and he could not read it; but was a man in whom the maker had confidence. The only person present when the note was made was the son for whose benefit the note was made; and that it was read over to him as a note for $100,00, when it was a note for $180,00. Held, that if guilty of no negligence he was not liable.

The general rule however seems to be, where the distinction, is at all made, that of the Connecticut Court. 36

29

379 Ind. 80.
27 29 Minn. 298.

78 Ind. 403. ** Perkins v. White, 36 0. St.531. » Dinsmeri v. Stimbert, 12 Neb. 433; Cole v. Wil

liams, 12 Neb. 440; Putman v. Sullivan, 4 Mass. 15; DeCamp v. Hamma, 29 O. St. 471; Winchell v. Crider, 29 O. St. 484; Shirts v. Over John, 60 Mo. 305; Millard v. Barton, 13 R. I. 601.

31 47 Conn. 347.
32 2 Lans. 477.
33 54 Ia. 214.
84 39 Wis. 219.
35 62 Wis. 480.
3 Supra, 32.

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