I. Introductory.-A. Where it is shown at the time of the signing and delivery of the note that the maker was induced by fraudulent representations as to the character of the paper, to believe that he was signing and delivering an instrument other than a promissory note, or when he intends to sign a promsory note but is fraudulently tricked into signing a different note from that which he intended, if his conduct in signiug the instruments was not attributable in whole or in part to his own negligence in the premises, he is not liable even to bona fide holder. Such is the law of perhaps the majority of the courts. The doctrine, is of new and recent date, in 1869 the leading case of Foster v. Mackinnon 1 was decided, and it may be classed as the first; and what is very remark

1 L. R. 4 C. P. 704. Bigelow on Notes and Bills.

able among all the cases holding such to be the law, is their wonderful similarity both as to the subject matter for which the notes were given, and the frauds practiced in obtaining them. Patent wire fences, patent wagon tongue supporters," patent sulky wheel cultivators, patent screw hay fork," patent family medicines," patent seed drill," patent plows, patent pruning shears," patent washing machines, 10 patent churns," patent clothes wringer, etc; were the articles for which the unsuspecting victim was persuaded to take an "agency," and then relying upon the honesty of the agent signed (what he supposed contract of "agency,”) a note without reading it.

8

To carry the similarity of these actions farther it will be found that in almost every instance the unsuspecting farmer is the victim. Having about exhausted the patent right fraud, the ingenious swindlers are now dealing in Bohemian Oats and Red-line Wheat etc.

The law says that in these cases the maker of the note is not liable even to a bone fide holder if guilty of no negligences in attaching his signature; and that whether or not there was such negligence is a question of fact for the jury under proper instructions of the court.

B. But how can a person attach his signature to a negotiable instrument and not as a matter of law be guilty of negligence? It is a well known principle of law that when one of two innocent persons must suffer, he who has committed acts, without which acts the wrong could not have been done, and by the aid of which acts the wrong was done, he who has committed such acts, enabling the wrong to be done, must suffer. No one will, or can question the justice of this rule. For what reason should the maker of a negotiable instrument not be judged by this rule.

2 Ort v. Fowler, 31 Kan. 478.

3 Super v. Peck, 51 Mich. 563.

♦ Anderson v. Walter, 34 Mich. 113.

5 Cline v. Guthrie, 42 Ind. 230; Gibbs v. Linsabury, 22 Mich. 483.

6 Williams v. Stoll, 79 Ind. 80.

7 Ross v. Doland, 29 O. St. 475.

8 Winchell v. Crider, 29 O. St. 481.

9 Perkins v. White, 36 O. St. 531.

10 Nat'l. Bank v. Johns., 22 W. Va. 506; Phelan v. Moss, 67 Pa. 67.

1 Auten v. Gruner, 90 Ill. 301.

Why should it not be said as a matter of law, that as he attached his name to the instrument and thereby brought it into existence, and thus gave the means of committing the fraud, the maker should bear the loss, and not the bona fide holder.

But the Supreme Court of Michigan, 12 has interpreted the maxim and says that it does. not apply to this kind of cases. This Court says, that the maxim supposes the action of the persons upon whom it imposes the loss to have proceeded from intelligence, and not to have been the result of duress. It presumes the assent of the will of the actor. If from any cause, the assent of the will is wanting, the result is the same as if the act were done under duress, or by an insane man.

C. While this may be a true exposition of this maxim under the views of that court yet it does not appear plain to me, why a person, able to contract and not under duress is not guilty of negligence, as maker of a promissory note, to a greater extent, then a bona fide holder.

Not being able to see how the maker could attach his signature and not be guilty of negligence. I have used the term "Excusable negligence" as being a more appropriate term to apply to those cases where the maker has been held not liable to a bona fide holder of his negotiable paper which bears his signiture.

II. Signing Name with the Intention of Signing an Instrument of Writing other than a Promissory Note.-1. What diligence must the maker of a promissory note use in attaching his signature? Will the mere relying upon the reading and word of a stranger be such negligence as will make the party so relying liable for the amount of the note in the hands of a bona fide holder? If able to read, must he read it, or if unable to read must he have it read to him, and if so, who must he have to read it to him? A person is betrayed or tricked into signing something which he never intended to sign, who is liable? Courts are not united npon their answers to these questions nor in their reasons for them. One class of courts holds that if the makers signature is genuine, no circumstances except perhaps duress and ability to contract, will excuse him.13

The other class which holds that there may be circumstances which will excuse the maker where his signature is genuine, arrive at this conclusion from different reasons and in different ways, and it is to this class of decisions that the remarks of this article are addressed and we will now proceed to consider the different views and the decisions under them.

2. Different Views.-A. One view is that as the maker never intended to execute the bill or note, it can not be considered his act, and he should not be held liable thereon, any more than if his name had been forged to such instrument.

The best exposition of this view, perhaps, is the case of Gibbs v. Linabury,14 where the court says; "When the defendant unwittingly signs an instrument in the form of a negotiable promissory note, relying upon false representations made to him at the time, that the instrument he is signing is a mere duplicate of a contract just previously signed by him, making him an agent for the sale of a patent hay fork, under circumstances devoid of any negligence on his part, and where fraudulent means are taken to prevent him from noticing the body of such pretended duplicate, and he delivers the same in ignorance of its true character, believing it to be a mere duplicate contract which he supposed he had signed, such instrument is to be regarded as a forgery, and can not be enforced" in the hands of a bona fide purchaser. In Anderson v. Walker 15 the following language is used. "If the defendant never intended and never agreed to sign a note or give one, and did not suppose or believe he was signing one, but was in fact only to sign, and believed he only was signing, the paper he had heard read, appointing him agent to sell cultivators, it is somewhat difficult to see how he could be held liable upon this note; and it is equally difficult to see how a man signing under such circumstances and belief could at the same time be considered negliIf he had not agreed to sign a note, gent. but to sign, and believed he was signing, other papers, which he had heard read, and

511 and cases there cited. Daniel on Neg't Instruments§ 850.

14 Supra, 5. 15 Supra, 4.

which in no way resembled in size or appearance a note, and which by no possibility could be tortured into a negotiable instrument, or by any ordinary change converted into one, he could not be guilty of negligence in so signing, even if it afterwards turned out in some mysterious manner that one of the papers he supposed he was signing was a note. Under such circumstances he had no intention of signing a note, but an instrument of an entirely different shape and tenor; that it should turn out to be a note would certainly be through no fault or caution, or want of caution on his part."

a. These courts lay down the further proposition of law that when a party to an instrument undertakes to read it over in the presence and hearing of the party thereto, in order that he may understand its contents before signing it, the party reading is both legally and morally bound to read it correctly, and that the other party has a right to rely upon its being so read and need not examine it himself. Ordinarily no negligence can be attributed to one who signs papers, after having so compared them, with further examination.

b. Instances.-In Atchison v. Taylor, 16 the signer could not read without great difficulty and he asked the payee's agent to read it for him, and he misread it. Held, that the signer was not liable to a bona fide transferree. The court said; "If he is unable to read or does so with difficulty, then he may avail himself of the usual means of information, by having it read by some person present; while this may not be the precaution which would have been observed by an unusually cautious man, still we think he acted as the great mass of men not in, or educated to business, act, in such cases."

In Griffiths v. Kellogg," the payee's agent misread the amount of the note to the maker, a woman; she did not read because she was unable to without her glasses and they were at the house of a neighbor; two of her children were present who were able to read, but she did not ask them. This was submitted to the jury and they found for the defendant, which was affirmed by the higher court.

16 54 Ill. 196; 5 Am. R. 118. 17 39 Wis. 209; 20 Am. R. 48.

In Soper v. Peck,18 it was shown that there was nothing said whatever about a note, that the agent informed him (deft.) that it was; "Nothing more than a statement that he wanted to send to the company to let them know who was their lawful agent," that he signed the paper in an ordinary sized note book; it was opened out like a note book; that he sat down by the gate post and signed it, and the man said nothing to him while he was signing it, and that he took the book in his own hands when he signed it; that he could have gone to the house and got his spectacles and examining the paper if he wanted to; that he supposed it was just as the man represented, and it was not necessary. In reviewing this case the Court says; "It can not be disputed but that the evidence of the defendant tended to show that he had a fraud practiced upon him, and that very probably he had put his name to a note when he supposed he was signing something entirely different. If the jury believed this, he was entitled to their verdict, unless his negligence was so gross as to preclude his making the defense against a bona fide holder.

The other cases adopting this view are cited in the notes.19

B. A second view is, that it is always a question of fact for the jury whether under the circumstances, the party was guilty of negligence.

Perhaps the clearest exposition of this view is the case of Martin v. Smylie,20 when it was shown that the defendant signed a note without reading, and it did not appear from the testimony that he could not read. The court left it to the jury to say whether the signature was without fault or negligence and they found for the defendant which was held not to be error, by the Supreme Court upon appeal. Hopkins v. Hawkeye Ins. Co.,21 may also perhaps be said to come under this. class, in which it was said that what constitutes reasonable care and diligence in the execution of an instrument is a question of fact

18 Supra, 3.

19 Foster v. McKinnon, L. R. 4 C. P. 704; Whitney v. Snyder, 2 Lans, 477; Citizens Nat'l Bank v. Smith, 55 N. H. 593; 3 Cen. Law Jour. 163; Wait v. Pomeroy, 20 Mich. 425; Detwiler v. Bish, 44 Ind. 78; Walker v. Egbert 29 Wis. 194.

20 55 Mo. 577.

21 57 Ia. 203.

for the jury, and where one trusts to an agent of the payee to read a note correctly, it is not as a matter of law negligence. In this case the defendant was unable to read the note on account of the absence of his spectacles. Whether he was justified in relying upon the reading of the agent, and in neglecting to call upon his wife or son who were present, constitutes not a question of law but one of fact. The question is, did he act as persons of reasonable and ordinary care would usually do under like circumstances. If he did, he was not negligent.

C. A third view is, that as a matter of law one must be adjudged guilty of such negligence as to render him liable who possessed of all his faculties and able to read, signs a note or bill relying upon the reading of a stranger that it is a different instrument.

Perhaps the larger number of the courts adopt this view.

Chapman v. Rose, 22 may be considered as the leading case adopting this view. This was a hay-fork case. The defendant thought, and was made so to believe by the agent that he was signing a contract of agency and relying upon such statements and belief he signed what afterwards turned out to be a promissory note. Here the Court says: "If it be objectd that there must be a duty of care in order to found an allegation of negligence upon the neglect of it, it must be answered that every man is bound to know that he may be deceived in respect to the contents of a paper which he signs without reading. When he signs an obligation without ascertaining its character and extent, which he has means to do, upon the representations of another, he puts confidence in that person; and if injury ensues to an innocent third person by reason of that confidence, his act is the means of the injury, and he ought to suffer.

In Peterson v. Macky 23 it appeared that Peterson supposed he was signing a receipt for a plow, it was read to him by the agent, and read as a receipt; Peterson could not read English and there was no one within a half-mile who could do so. Held that he was liable to a bona fide, transferree. The Court said; "Where a party, through neglect

22 56 N. Y. 137.

23 29 Ia. 408.

of precautions within his power, affixes his name to that kind of paper without knowing its character, the consequent loss ought not to be shifted from him to a bona fide purchaser of the paper.

Tested by this rule, the facts the defendant offered to prove would have been no defense. He signed the paper voluntarily. He was under no controlling necessity to sign without taking such time as might be needed to inform himself of its character. If he could not read it himself, there was no reason, except perhaps his own convenience or haste, why he should not postpone signing until he could have it read by some person upon whom he had a right to rely. Instead of doing that, he chose to rely upon an entire stranger, the party opposed to him in interest and the only person under temptation to deceive him as to the character of the paper he was asked to sign. One who without any necessity so misplaced his confidence ought not to be heard to claim that the paper he is in consequence mislead to sign should be taken out of the rule protecting commercial paper."

In William v. Stoll,24 the evidence showed that two strangers came to the defendant's house, where he and his two sons were at work; that they wished the defendant to take an agency to put up bills and sell patent medicines that he told the strangers that he was old and could not read or write, and could not be their agent. The strangers then said they would appoint his son, who was a minor, which was finally agreed to. They then said, as the son was a minor, it would be necessary for the father to sign the contract, which he did, relying upon the representations of the strangers. Held, that he was guily of negligence in not requiring one of his two sons, who were present and could read, to read the instrument.

In Douglass v. Gnatling,25 the facts were substantially similar to the above case, except that it did not appear that there was one present who could read. The defendant was held liable. The court observing: "It is better that the defendant, and others who so carelessly affix their names to paper, the character of which is unknown to them, should suffer from fraud which their reckless

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

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, 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 name. 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, 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.29

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

26 79 Ind. 80.

2729 Minn. 298.

28 78 Ind. 403.

29 Perkins v. White, 36 O. St. 531.

Dinsmeri v. Stimbert, 12 Neb. 433; Cole v. Wil

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 excused, 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.

31

A. Instances.-In Rowland v. Fowler, 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.

34

32

To the same effect is Whitney v. Snyder." In Savings Bank v. Steffes the question is "dodged" and Griffith v. Kellogg 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

liams, 12 Neb. 440; Putman v. Sullivan, 4 Mass. 45; 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.

34 39 Wis. 219. 35 62 Wis. 480. 38 Supra, 32.