Opinion
May, 1904.
Judgment reversed on law and facts, referee discharged, and new trial granted, with costs to appellant to abide event.
The learned referee in deciding the case has found that the plaintiff has failed to establish, by satisfactory proof, a consideration for the note in question, and for that reason alone he has dismissed the claim. He has not passed upon the principal questions litigated upon the trial before him, viz., as to the genuineness of the note and the agreement. He has assumed, however, without expressly finding it, as a fact, that the signature to the note is genuine. He has not found that the signature of Alfred Dunk to the agreement is a forged one, nor has he found that it is genuine. The plaintiff had the testimony of six witnesses, some of whom had seen Alfred Dunk write, three of whom were sworn as experts and judged by comparison of the disputed signatures with admittedly genuine signatures, and all of whom gave it as their opinion that both of these disputed signatures were genuine. The defendant, on the other hand, had the testimony of a like number of witnesses, three of whom also were experts, and all of whom gave a contrary opinion. The testimony for and against the genuineness of the signature to the note followed as nearly along the same lines as the evidence relating to the disputed signature upon the agreement, as it well could, considering that they were different signatures, and one was written with pencil and the other with ink. So that upon the evidence upon this subject in the case, if the referee properly assumed that the signature to the note was genuine he must also have assumed that the disputed signature upon the agreement was genuine, and if it is assumed that that agreement is a valid contract between the parties it furnishes strong corroboration of the testimony given by the plaintiff's mother, and, taken with her testimony, proves that the note was given for a valid consideration, and leads us to the conclusion that the referee was in error in holding otherwise. The testimony of the plaintiff's mother was to the effect that the policy of insurance was taken out by his father and made payable to his grandfather for the purpose of securing the latter against loss in the partnership business, and in the event of that business being wound up without liability to him he agreed with plaintiff's father that the insurance moneys were to be held in trust by him for the benefit of the plaintiff until the latter arrived at the age of twenty-one years, and then be paid to him. It is clearly proven that the partnership business was wound up without loss to the grandfather and with a substantial profit to his credit. While the referee has found that the evidence in the case, which, in that respect, was largely given by the plaintiff's mother, is insufficient to sustain such an agreement, in coming to that conclusion he has apparently given no force to the disputed memorandum or agreement, the signature to which he has practically assumed to be genuine. The agreement starts out with the following recital: "Whereas, Alfred Dunk has given A.O. Dunk a certain note for Ten Thousand and twenty dollars, for amount due on a certain trust fund held by him as per agreement with Alfred Allen Dunk (now dead) and Alfred Dunk, regarding a certain Ten Thousand dollar life insurance policy on the life of said Alfred Allen Dunk." While it is not here recited in express terms that the "amount due" is due to Alfred O. Dunk, the plaintiff, the fair inference is that the amount is due to the person to whom it is recited the note referred to has been given for the "amount due," namely, to said Alfred O. Dunk. Here, then, is the admission on the part of Alfred Dunk that he holds a trust fund created by an agreement with Alfred A. Dunk, who was his deceased son, and the further admission that there is the sum of $10,020 due to the plaintiff on such trust fund. We are not assuming to decide as to the genuineness of either the note or the signature on the disputed agreement, for we have not felt it incumbent upon us, upon the present appeal, to examine or decide those questions, they not having been decided or passed upon by the learned referee, but following his assumption that the note in question is genuine, and the assumption which necessarily follows, that the disputed agreement is also genuine, we conclude that the referee was in error in holding that there was a failure to prove a consideration for the note, for the disputed agreement itself, if genuine, with the other evidence in the case proves such consideration. We think it essential to the proper disposition of this case that those questions be decided and that there should be a new trial, to the end that if the assumption upon which the decision has been made is correct the plaintiff may recover, and if the assumption is not correct the court upon the new trial may decide that the signatures are forgeries and give judgment accordingly. All concurred.