Opinion
No. 29629.
November 30, 1931.
1. BILLS AND NOTES.
Where defendant filed affidavit denying execution of acceptances sued on, burden of proof of signature was on plaintiff (Code 1930, section 1587).
2. EVIDENCE.
Evidence that defendant admitted signing acceptances sued on held admissible where defendant filed affidavit denying execution (Code 1930, section 1587).
3. EVIDENCE.
Admissions of party denying signature or execution of instruments are sufficient to meet burden imposed on plaintiff (Code 1930, section 1587).
APPEAL from circuit court of Jasper county; HON.E.M. LANE, Judge.
J.M. Travis, of Meridian, for appellant.
It is a well settled rule in this country that admissions and declarations of a party against his interest are competent testimony, tending to establish the ultimate fact in dispute.
McCloskey Bros. v. Hood Millinery Co., 119 Miss. 92, 80 So. 492.
When defendant sets up in bar of plaintiff's recovery a deed to him, purporting to be plaintiff's and plaintiff swears it is a forgery, the burden is on defendant to prove it genuine.
Cain v. Moyse, 15 So. 115.
That defendant's signature to the note sued upon was obtained by fraud is an affirmative defense to be proven by defendant.
Holmes Bros. v. McCall, 74 So. 786.
It is a well settled rule of law that the court always passes and decides upon the issues of law in the case and the jury decides upon issues of facts.
Wilder v. Ferguson, 111 Miss. 225, 71 So. 327; Dickerson v. Y. M.V.R.R. Co., 71 So. 312.
J.A. McFarland, of Bay Springs, for appellee.
If a defendant denies his signature by sworn plea, then it devolves upon plaintiff to prove the genuineness of the signature.
Sec. 1587, Code of 1930.
Arky, the appellant, sued Coker, the appellee, on two acceptances for fifty and thirty dollars, respectively, drawn by the Southern Radio Company on T.H. Coker, accepted in writing by the latter, and transferred by the drawer to H. Arky, who paid value therefor. In a justice of the peace court judgment was rendered in favor of defendant, appellee here; and plaintiff, appellant here, appealed to the circuit court, where the case was tried de novo, resulting in a judgment in favor of appellee, from which judgment appeal was prosecuted here.
Under section 1587 of the Code of 1930, the defendant in the court below, appellee here, filed an affidavit denying the execution of the acceptances by him. The appellant sought to prove the genuineness of the signature of the acceptor, by comparing handwriting, in which effort he failed. However, H. Arky testified that Coker admitted at Rose Hill that he signed the acceptances; but based his defense thereto on the ground that he had not received the radio, for which the acceptances apparently were executed.
Under section 1587 of the Code of 1930, the party pleading a paper signed by another is not bound to prove the signature thereto, unless and until the party sought to be charged specifically denies the signature, or execution of a paper, by a plea verified by the oath of the party denying the signature. Therefore, Coker, defendant below, appellee here, having denied the execution of the paper, the burden of proof of the signature thereto was upon the plaintiff in the court below. He sought to meet that burden; and the evidence that Coker admitted signing the papers at Rose Hill was admissible competent evidence. See Central Nat. Bank v. Copp, 184 Mass. 328, 68 N.E. 334. Also, see Cain v. Moyse, 71 Miss. 653, 15 So. 115. The admissions of the party denying the signature, or execution of the instrument, are sufficient to establish the case, and meet the burden imposed upon the plaintiff. See 8 C.J., p. 1027, section 1342, and authorities there cited.
It follows that the court below was in error in sustaining the motion to exclude this evidence, and in peremptorily instructing the jury to find for the appellee.
Reversed and remanded.