Opinion
01-07-1897
FLEMMING v. LAWLESS et al.
W. B. Williams and Robert L. Flemming, for complainant. Halsey M. Barrett and James D. Manning, for defendants.
Suit by Sarah L. Flemming against Peter Lawless and others. Heard on bill, answer, and proofs.
W. B. Williams and Robert L. Flemming, for complainant.
Halsey M. Barrett and James D. Manning, for defendants.
PITNEY, V. C. This is a bill to foreclose a mortgage on lands dated April 15, 1872, given by the defendant Peter Lawless to Andrew C. Morris and Coles Morris, trustees, to secure the payment of $7,000 in five years, with interest at 7 per cent. The complainant derives title by assignment from Coles Morris, trustee, dated October 1, 1874. Prior to that time a payment of $2,250 had been made on account of the principal due upon the bond which evidenced the debt, reducing the amount due at the time of the assignment to $4,750 of principal. Interest at the rate of 7 per cent. was paid, and appears to be Indorsed on the bond in the handwriting of the late James Flemming (of the Jersey City bar, the husband of the complainant) up to and including the month of April, 1894. He acted as the agent and attorney of his wife, and died October 1, 1894. The premises covered by the mortgage are part of what is known as the "Coles Estate," and are situate on the corner of Erie and Twelfth streets, in Jersey City, 75 feet front on Erie street, and 100 feet on Twelfth street, and are known as "Lots Nos. 17, 18,and 10, in block 161," on a map of the Coles estate.
The bill is in the ordinary form of a bill to foreclose; sets out that in consideration of the payments which reduced the amount due on the mortgage to $4,750 certain parts of the lots were released by the holders of the mortgage; and further sets out changes in the title, and other matters, which are unimportant, and lead to no matter of present dispute. The bill further sets out, and defendants admit, a default in paying taxes, water rents, and other municipal assessments and liens upon the premises; that they were allowed to remain in arrear for a long time, and were adjusted by the commissioners of adjustment of Jersey City appointed according to law (Martin act), and that the complainant, by request of defendants, paid certain sums of money to the city to discharge the liens of the taxes, to wit: April 7, 1800, $1,084.70; April 30, 1890, $1,093.60; May 7, 1890, $1,094.40; October 13, 1891, $1,512.56—being a total of $4,785.26. These payments were proven and admitted. So much of the mortgaged premises as still remains subject to the lien of the mortgage has been conveyed several times, but finally appears to rest in the defendant Peter Lawless, the original mortgagor., The defense set up by the answer is that all of these arrears of taxes, and a large portion of the amount due on the mortgage for principal, have been repaid to complainant by the defendant Peter Lawless, reducing the principal to $949.50; and the only matter litigated was as to the amount of those payments. The complainant admits payments on account of the amounts advanced to pay arrears of taxes as follows:
| Received from Mrs. Vorrath, on occasion of a release of a portion of the mortgaged premises to her March 31, 1890 | $1,200 | |
| Paid by defendant Peter Lawless March 22, 1890 | 1,400 | |
| Paid by the same September 15, | $260 | |
| Paid by the same October 13, | 540 | |
| 800 | ||
| Total | $3,400 |
Further in the progress of the production of their case the counsel for defendants called on the complainant to produce all books, papers, and memoranda of every kind which she had in the handwriting of Mr. Flemming bearing upon the question here at issue. In pursuance of that request the complainant produced quite a mass of documentary evidence, consisting of check books, bank pass books and memoranda made on detached pieces of paper, all in Mr. Flemming's handwriting; and these, together with other letters and papers put in evidence by the defendants, and the affidavit made by Lawless in March, 1894, in the suit of O'Neill v. Flemming, put in evidence by the complainant, constitute the documentary evidence in the cause. In addition to the parol evidence of payment given by Peter Lawless, defendants called Mrs. Catharine O'Neill, who swore that in October, 1893, she saw the "suspect," and saw Peter Lawless paste upon the back of it a strip of muslin or tape, there now visible, to prevent it from falling into two pieces. They further called Mrs. Anne Lawless, the wife of Thomas, brother of Peter, who swore that in October, 1893, she saw the impounded receipt with the muslin pasted on the back of it, and at the same time she saw four other receipts,—one for $2,600, and another for $800. They further called Peter O'Neill, the son of Catharine, who swore that in the early part of the month of October, 1893, his uncle Peter Lawless handed him certain receipts, signed by James Flemming, but he was uncertain as to the number; he was sure that there were two, and thinks there may have been more, but is quite uncertain as to that; but he recollects that the "suspect" was one of them by the sum of $1,335 mentioned in it; that at Peter's request he made a copy of each of them, and later on he made another copy of each, making two sets in all, and gave them to his uncle, and at that time the strip of muslin or tape was not pasted on the back of the "suspect." They further called Robert Lawless, the son of Thomas, who swore that in October, 1893, about the 7th or 8th, he saw the "suspect," and at that time the muslin was pasted on the back, and at the same time he saw four other receipts signed by Mr. Flemming, for money paid to him by Peter Lawless; some were in typewriting, and some in ink; that he read them all; had them in his hand; he recollects the amounts expressed in two of them,—one for $2,600, and the other for $1,000. The others he does not recollect. He says that the occasion of his seeing them was that his uncle Peter was visiting at his father's house, and his mother, Anne, and uncle Peter were talking about the receipts, and his uncle was showing them to his mother, and they were discussing the way in which Mr. Flemming spelled his name, and that he spelled it in two or three different ways; that his mother had several receipts signed by Mr. Flemming for interest paid by her on a mortgage which Mrs. Flemming held against her, and that she went upstairs, and brought down these receipts, and compared the signatures on them with those on the receipts produced by his uncle Peter. No reason was giving for the making of copies of those receipts at that time,—October, 1893. The copies themselves are not produced, and no reason offered for their nonproduction. In fact, Peter Lawless (who testified before Peter O'Neill) swore, in substance, that he never had any copies made other than those made by O'Sullivan. It is obvious that the date of this inspection of these papers is important. It is attempted to be fixed in October, 1893, in the lifetime of Mr. Flemming, by two circumstances: First, that Peter Lawless came to live with his sister, Mrs. O'Neill, on the 1st of October, 1893; and, second, that a relative—Mrs.Chaput—died about that time. But there is no necessary connection between that circumstance, and Peter's going to live with Mrs. O'Neill, and the pasting the tape on the back of the receipt. Then the nonproduction of the copies made by Peter O'Neill in October, 1893, in view of the loss of the originals by Mr. O'Sullivan, is remarkable. Further, the question arises, why should Peter Lawless have an inspection made of these receipts, and a comparison of the signatures with other genuine ones, in Mr. Flemming's lifetime? There is no room for the supposition that he at that time feared that Mr. Flemming would deny the payments, and repudiate his signature, if genuine. But we can understand why such an examination and comparison should have been made a year later, in October, 1894, shortly after Mr. Flemming's death. The case shows that Peter Lawless had had dealings for many years with Mr. Flemming, and had in his possession a great number of letters written by him. I come now to the affidavit sworn to by Peter Lawless on the 30th of March, 1894, in the suit in New York City, brought by Catharine O'Neill against Mr. Flemming. That suit was commenced on the 9th of February, 1894, and its object was to hold Mr. Flemming, as trustee for Mrs. O'Neill of the title of certain leasehold premises in the city of New York. A motion was made shortly after the commencement of the suit for a receiver, which was denied, and shortly after a second motion for a receiver was made upon fresh affidavits. One was made by Mr. O'Sullivan, and another by Peter Lawless, who, the indications are, was the real plaintiff in the suit. In that affidavit (prepared by O'Sullivan) Lawless stated that Mrs. Flemming held the mortgage now under foreclosure. It set forth how the title to the mortgaged premises was held. A part of the lot stood in the name of his aunt, Mrs. Rathe, and the balance in Lawless' name. Then it referred to a clause in Mr. Flemming's affidavit made in opposition to the previous motion for a receiver in the suit of O'Neill v. Flemming, in which Mr. Flemming swore that he had paid to the city collector of Jersey City over $3,300 for adjusted taxes on the mortgaged premises herein. Then, after distinguishing between the mortgage on the Twelfth and Erie street property and another mortgage held by Mrs. Flemming on Mrs. Rathe's Bright street property, it proceeds as follows: "This deponent further says that in the years 1890 and 1891 this deponent advanced to the said Flemming for the payment of back taxes on the Erie and Twelfth street property, both the parcels owned by Mrs. Rathe and this deponent, the sum of $1,400 on March 22, 1890, and the sum of $800 on October 13, 1891. In this connection deponent submits the following copies of receipts in his possession: 'Received, March 22d, 1890, from Peter Lawless, $1,400.00, to be used in settling the taxes and assessments as adjusted by the commissioners on the property on the northeast corner of Twelfth and Erie streets, Jersey City, either by paying the taxes as adjusted or buying in the lots at the sale. After the mortgage of Sara L. Flemming on said lot, and any money paid or advanced by her to settle the taxes and assessments as adjusted, is paid, said Peter Lawless is to have the benefit of the money advanced by him as aforesaid. [Signed] James Flemming.' Also the following receipt: 'Rec'd, October 13th, 1891, from P. Lawless, Esq., $800.00 for sale, adjustment of taxes on Twelfth street house J. C. [Signed] J. Flemming.' In addition to the foregoing sums, between the dates of the above receipts he received $1,200 for the same purpose from Gustav Vorrath, of Hoboken, being money due this deponent, and allowed to the said Flemming to help pay said taxes. At that time said Flemming gave this deponent to understand that there was only about $1,300 more due for taxes on the Twelfth and Erie street property, and this deponent has been paying said Flemming interest on the said amount since October 13, 1891, and said Flemming is amply secured by said Twelfth and Erie street property for the $1,200 advanced by him for taxes as aforesaid." It seems to me that the omission by Mr. Lawless in that affidavit to state the second and third payments of $1,685 and $2,600, respectively, which are now disputed by the complainant, is significant, and, unexplained, as it is, well-nigh conclusive. The affidavit was prepared by Mr. O'Sullivan, who, on the defendants' theory, then had in his possession all four separate receipts, as well as the "omnibus" or "suspect." He undoubtedly had the first and fourth receipts, since the two receipts set out in the affidavit are accurate copies of the genuine receipts, copies of which were retained by Mr. Flemming, and produced on the defendants' call, with a single exception. In the margin of the original receipt for $800 are these figures:
260+ 540=800
These figures are shown in the copy made by Mr. O'Sullivan, produced by the defendants at the hearing, and it was undoubtedly for the purpose of introducing these receipts into the affidavit that they were handed to Mr. O'Sullivan by Lawless in January or February, 1894.
I come now to the documentary evidence produced by the complainant on the demand of the defendants. It consists of several stubs of check books and bank pass books corresponding therewith, and of checks and loose memoranda. These show that Mr. Flemming usually deposited to one or the other of his accounts in bank (he kept two) the money he received in the course of his business, and show three Lawless payments,viz. the Vorrath payment (of $1,200), and the payment evidenced by receipts Nos. 1 ($1,400) and 4 ($800), but contain no memorandum whatever of any money received at or about the dates mentioned in the disputed receipts Nos. 2 and 3, except such as are clearly proven to have come from other sources. On March 22, 1800, he is credited with $1,400 on his pass book with the Second National Bank of Jersey City. On April 2d he is credited with $1,280.86, which is shown by a memorandum on the check book to include the Vorrath payment. On the 7th of May he is credited on his pass book in the same bank with a deposit of $1,583.45. In the margin of the stub of his check book are these words and figures:
Deposit May 7, 1890.
B Gas 68.25
Lewis 15.20
1500.
1583.45
The deposit ticket for that deposit was produced by the teller of the bank, and it reads in this wise: "Deposited in the Second National Bank of Jersey City May 7, 1890. Check, 1,500; do., 15.20; do., 68.25; total, $1,583.45." It appears clearly that the $1,500 was deposited by a check, and not by currency. It was also clearly shown that the $1,500 check was drawn by Mr. Bumsted to the order of Mr. Flemming on the First National Bank, and was dated May 7, 1890. On September 15, 1891, there is a credit on Mr. Flemming's pass book with the Second National Bank of $300. Under the same date, on the obverse side of his check stub, is this entry: "September 15, 1891. Deposit Joseph Anderson's check $300, Mrs. Lawless, $300," —making, however, one item. On September 16th there is a deposit of $260, and on the obverse side of the check stub is this entry: "September 16, 1891. Deposit P. Lawless, bills, $260." On October 13, 1891— the date of the $800 receipt and of the "omnibus" or "suspect" receipt,—there is a credit on his Second National Bank pass book of $789, and on the obverse side of the stub of his check book, under date of October 13, 1891, is this entry: "Deposit, October 13, 1891. P. Lawless, bills, $539; J. Trapp, $250; total, $789." The complainant's theory of this is that the $800 payment was made up of two payments,—one on September 16th, of $260, and another on October 13th, of $540; making in all $800,—and thus accounting for the figures "260" and "540" added up to make $800 on the margin of the receipt which was given for the same. Next after the credit of $260 on September 16th, to wit, on the 19th, there appears a credit on Mr. Flemming's pass book in the Second National Bank of $1,800. That is proven to have been paid to him in a check of Henry Puster to the order of McCormick. This payment was fully explained by Mr. Griffin, of the Jersey City bar, as follows: Mrs. Flemming had a mortgage in process of foreclosure on property held by Anne Lawless and her husband Thomas, and they, as owners, had contracted to sell a portion of it to Mr. McCormick, and, in order to obtain a release of the portion sold from Mrs. Flemming's mortgage, Mr. McCormick procured a loan from a client of Judge Puster and the $1,800 check was paid to McCormick, and by him indorsed to Mr. Anderson, as attorney for Mrs. Flemming, and by her indorsed over to her husband, Mr. Flemming. These were the only entries on either bank book that threw any light upon the disputed payments, or indicated any deposit to correspond therewith.
Among the papers produced by the complainant is a manuscript copy of the receipt No. 1, of March 22, 1890. This is an exact copy of the receipt set out in Lawless' affidavit in the New York suit, and also of the copy as made by Mr. O'Sullivan. There was also produced a typewritten copy of receipt (No. 1) of March 22, 1890, and also of that (No. 4) of October 13, 1891, for $800, both on one sheet, which has indorsed in Mr. Flemming's handwriting: "Receipts. P. Lawless. Copies." That receipt (No 4) is also an exact copy of the copy produced by Mr. O'Sullivan, including the figures "260—540— 800" in the margin, also of the copy as set out in Lawless' affidavit, except that the latter does not have the figures "260—540—800" in the margin. Lawless swears that receipt No. 1 was typewritten. This does not accord with the fact that Mr. Flemming kept a manuscript copy of it. Other papers produced by the complainant on defendants' call are several memoranda in Mr. Flemming's handwriting on loose slips, which have some significance. The three payments of taxes made in April and May, 1890, aggregate $3,272.70. One slip contains these figures:
Rec. P. Lawless 1400
2600
3272.70
2600.
672.70 April 30, 1890.
6 1891.
40.36
Plainly, this computation was made to ascertain the annual Interest on the balance of $672.70 due for taxes. Then there is another slip produced, which contains a copy of a receipt, thus: "Rec. from Mrs. Rathe [who then held the legal title] by P. Lawless, $40.36, interest on taxes to September 16, 1891." That, it will be observed, is the very day on which Mr. Flemming deposited in bank the $260 as received from Lawless, and is the day after the date of the disputed receipt, No. 3. The memorandum, however, does not indicate the date of the actual payment of $40.36. The payment of this sum as interest was not disputed by Lawless. Mr. Lawless is a business man, and has beenengaged in numerous business transactions, and the probability is that when called on to pay that money for interest on taxes to Mr. Flemming he inquired how it was made up, and, if so, he must have ascertained and known that the total paid by Mr. Flemming up to that date was $3,272.70; that the credit of $2,600 was composed of the two payments of $1,400 and $1,200, and did not include the alleged payment of $1,685, made in May, 1890. Though no memorandum is produced for it, the fair presumption is that he had previously paid at least six months' interest on the same sum, since from April 30, 1890, to September 16, 1891, is nearly 18 months. Another memorandum is this:
"$1335.85x6=8020.10
40.10+166.25=206.35"
This is intelligible when we remember that $166.25 is the semiannual payment made for years on the mortgage, and the object of the computation was to ascertain the total semiannual interest to be paid. An error of five cents occurs in the first process. On another slip of paper the same computation of interest is made, and the error of five cents is discovered, and the amount payable semiannually is made $40.07 1/2. Now, that sum of $206.35 was paid by Lawless every six months from that time on up to Mr. Flemming's death, and the receipts for it are produced by the defendant. Two of them are special. One of them reads, "$40.07 for interest on $1,335.85 for taxes;" another is for "40.10 for six months' interest on taxes on Twelfth and Erie streets"; two other receipts are for "$206.35 for interest on Twelfth and Erie streets, and on tax redemption." In the margin of one are these figures:
"166.25+40.10=206.35"
These papers show that Mr. Lawless must have been conscious—and in fact he so swears—that he was paying interest not only on the whole amount due on the bond ($4,750), but also on $1,335.85 for money advanced to pay taxes; and those payments not only continued up to Mr. Flemming's death, but on the 23d of October, 1894,—three weeks after his death,—Mr. Lawless paid Mrs. Flemming $166.25 for interest on the mortgage, but does not appear to have paid the interest on the moneys advanced to pay taxes. Another slip produced shows addition of the three sums paid for taxes in April, 1890, aggregating $3,272.70, and afterwards is added the payment of October 13, 1891, of $1,512.56, making a total of $4,785.26. Another slip contains an addition of the four items, with the same result.
In answer to the argument to be drawn from the continued payment of interest not only on the principal of the mortgage, but on the sum of $1,335.85 claimed to be due on account of advances to pay taxes, Lawless swears that he trusted Mr. Flemming implicitly, and supposed that there was as much as $8,000 due for taxes, and never got from him a statement in detail of the payments on that account. This seems to me well-nigh incredible, when we bear in mind that Lawless was a business man, that he made these payments in each case in cash in Mr. Flemming's office, to him in person, who must have had before him materials from which to make a statement in a moment's time. The figures on the slips of paper above referred to show this, and the fair inference is that they were copies of statements banded to Lawless. Then we must believe that Mr. Flemming was bold enough to deliberately attempt to suppress these two large payments and cheat Mr. Lawless out of them. At the same time that Mr. Flemming made the last payment of $1,512.56 for arrears of taxes on the mortgaged premises,— October 13, 1891,—he also paid a large sum for arrears of taxes due on the Bright street property, the whole being included in one check for $4,842.41; and, in order to make his bank account good for it, procured a discount of a note for $4,500. I have already mentioned that no credit appears on his pass book for the alleged $2,600 payment. It is worth while to observe that this sum—$1,335.85—is $49.41 less than the actual balance, which is $1,385.26. How this discrepancy crept in is one of the unsolved mysteries of the case.
The verbiage of the disputed receipts themselves is worthy of consideration. The genuine receipt of March 22d is a businesslike and lawyer-like document,—$1,400 was received "to be used in settling the taxes and assessments as adjusted, either by paying the taxes or buying in the property at the sale. After the mortgage of Sara L. Flemming on the said lot, and any money paid or advanced by her to settle the taxes and assessments as adjusted, is paid, said Peter Lawless to have the benefit of the money advanced by him as aforesaid." (The italics are mine.) Now, let us take the language of the second (disputed) receipt, dated May 6, 1890: "Received, May 6, 1890, from P. Lawless, $1,685, to assist in adjusting the taxes and assessments on the property corner of Erie and Twelfth streets, Jersey City." Now, that language is not that of a lawyer, and is inaccurate. The taxes had already been adjusted under the Martin act, and the proper language would have been that used in the first receipt, "to be used in paying the taxes and assessments as adjusted." Then, in the third (disputed) receipt, of September 15, 1891, for $2,600, the same inaccurate language is used: "Received, September 15, 1891, from PeterLawless, $2,600, as repayment in part of sums advanced by Sarah L. Flemming, mortgagee, for the benefit of the said Peter Lawless in adjusting the taxes and assessments on his property." We come now to the omnibus receipt or "suspect," and notice the language of that, which is also peculiar: "Received, March 22nd, 1890, from Peter Lawless, fourteen hundred dollars. May 6, 1890, sixteen hundred and eighty-five dollars. September 15th, 1891, twenty-six hundred dollars. October 13th, 1891, eight hundred dollars. Balance due Sarah L. Flemming thirteen hundred and thirty-five dollars and eighty-five cents, advanced by her in excess of the amount received from Peter Lawless for adjusting the taxes and assessments on the property corner of Twelfth and Erie streets, and Twelfth street house, Jersey City. When said money, together with the amount due on the mortgage which covers said property, is fully paid, a general release will be granted, and said mortgage canceled." It will be perceived that the receipt does not state directly on what account these payments are made, but proceeds at once, after acknowledging their receipt, to state the balance due to be $1,335.85, and that that amount is advanced in excess of the amount received from Peter Lawless for adjusting the taxes and assessments. Here, again, is that peculiar language, "money received for adjusting the taxes and assessments," instead of "paying taxes already adjusted." And then, supposing that Mr. Flemming could have used that language, I find it difficult to understand why he should add the clause, "When said money, together with the amount due on the mortgage which covers said property, is fully paid, a general release will be granted, and said mortgage canceled." Complainant's counsel explains the addition of that clause in this wise (and I think his explanation is plausible, at least): The first receipt—March 22, 1890—provided, as we have seen, for "either paying the taxes as adjusted or buying in the lots at the sale," and then was added a clause which recognized Lawless' right to redeem, and provided that he should have credit for the moneys paid; and the object of the clause was simply to provide for the case of a sale. The last clause of the omnibus receipt or "suspect," it is argued, was a weak attempt of the forger to provide a corresponding clause in imitation of the first and genuine receipt. Another observation on the language of that receipt is this: Lawless says that it was made out and sent to him to satisfy a request of his, not for a consolidated receipt, but for a statement of taxes paid by Mrs. Flemming to show how they stood. Now, this receipt does not contain such a statement, except by implication. It does not give such a statement of taxes paid as a lawyer or business man would give, and such as is shown Mr. Flemming made on several occasions on loose slips of paper. In short, it was not a compliance with Lawless' request, and seems to have been an idle and useless document. Mrs. Flemming, and her son, the solicitor in this cause, both swear that they have made thorough search in every direction for any evidence that either of these disputed payments ever came to the hands of Mr. Flemming, and have been unable to find any. Under these circumstances it is necessary to believe that, if Mr. Flemming received the disputed payments, and gave his receipts for them, he departed from his general custom in other cases, and did not deposit that money in bank, but made some other secret use of it, of which no record or memorandum of any sort is left. Now, it seems difficult to believe that he would have done this with two outstanding receipts, signed by him, to prove at any time that he had actually received the money. Then, again, Mr. Lawless' account of the sources of these large payments is un-satisfactory. The account is this: That by reason of his being in a chronic condition of embarrassment with his creditors, he was in the habit of using his cousin, a Mrs. Chaput, daughter of Mrs. Rathe, as a banker, and depositing moneys with her, which she kept, as he supposed, in some savings bank; and that he also, to some extent, did the same with a Mrs. James Lawless, a relative, but just what relation does not appear. He says that one of the four alleged payments he received from Mrs. James Lawless, but the larger portion of them came from Mrs. Chaput. Mrs. Chaput is dead. Mrs. James Lawless was not sworn. Their several bank accounts, if any, were not produced; nor is their absence accounted for. Surely, if any such moneys had been on deposit in the names of these ladies in any savings bank, and drawn for the purpose of these payments, it could easily have been shown. Considering, then, the suspicious and unreliable evidence of the existence of these two disputed receipts at any time in Mr. Flemming's lifetime; their omission in Peter Lawless' affidavit in the New York suit; the absence of any trace of the money in Mr. Flemming's bank accounts; the remarkable circumstance that such large sums of money were paid in bank notes; the failure of Mr. Lawless, when questioned, to show satisfactorily from whence he received the money; his vacillating and hesitating conduct in the matter of impounding the separate receipts pursuant to the order of the court; the remarkable circumstances attending their loss; the fact that he continued to make payments, during Mr. Flemming's lifetime, of interest, not only on the whole amount due on the mortgage, but upon a considerable balance due for moneys paid for tax arrearages, when the slightest examination must have shown him that not only were there no such arrearages, but that the principal of the mortgage was nearly paid; the remarkablecharacter of the contents of the papers themselves,—so much doubt is thrown upon the whole case that, if it stopped with the evidence already referred to, I should hesitate long before giving credence to the defendant's story. But the case does not stop there, and the complainant attacked the genuineness of the paper known as the "suspect" or the "omnibus" receipt. It is, apparently, one-half of a single sheet of legal typewriting paper. The indications are that the sheet had been folded in the ordinary way that a lawyer's paper is folded, with three creases, that it had been torn in two at the center crease, leaving one crease in each half. All except the signature, "J. Flemming," is typewritten, and is written across the crease and parallel with the side of the full sheet. Then the receipt has, at some time, broken in two at the crease, and the strip of tape or muslin before referred to has been pasted on the back over the break. There are no signs of any ruling upon it. It is of a brownish-yellow coffee color, very weak in texture, and partly disintegrated, so that it must be handled with care, and is preserved between two pieces of pasteboard. The typewriting and the signature "J. Flemming" are very faint. The signature itself is, in a sense, undoubtedly genuine; that is, Mr. Flemming actually wrote his name just in the place and manner in which it appears on the paper. The theory of the complainant, sustained by two reliable and rather distinguished experts,— Mr. Carvalho and Prof. Leeds,—is that there was originally ordinary writing upon the paper above the signature of Mr. Flemming; probably a manuscript business letter; that the signature was first protected by being carefully traced with India ink, which is indestructible by ordinary acids, and then the whole paper subjected to a bath composed of a mixture of some acid of chlorine,—probably a chloride of tin and sulphuric acid, the result of which was to entirely obliterate all the writing and ruling except the signature; then that it was dried, and ironed, and the body of the receipt typewritten over the signature. It was clearly proven by chemical tests that the starch which must originally have been in the paper has been completely removed, so that the stenographer's ink used in marking it spread freely, while the signature "J. Flemming" shows no indication of any spreading; and, if originally written with ordinary ink, its not spreading proves conclusively that the paper originally must have, as already remarked, contained the usual quantity of starch. A variety of experiments were made during the hearing by both Mr. Carvalho and Prof. Leeds, and various chemical tests applied, with the result that the presence in the paper of chloride of tin was pretty clearly proven. This is an expensive acid of chlorine, which is not used in the ordinary process of paper making. It is quite clear that none of the bleaching salts used in the original manufacture of the paper would remain after so long a time, while Mr. Carvalho swears, and is corroborated in that respect by the master, that when he first saw this paper, in December, 1895, or January, 1896, he detected a decided smell of chlorine emanating from it.
We have, then, two circumstances going to prove that this paper has been tampered with: First, the absence of the least trace of starch; and, second, the presence in it of chlorine. In addition to this, we have the peculiar color and dilapidated and disintegrated condition of the paper. Mr. Lawless accounted for the color and dilapidation of the paper by stating that he carried it in his pocket ever since it was given. I am unable to adopt that explanation. The color is uniform throughout, except the muslin strip, which, in my judgment, is a recent addition. In the case of a paper becoming discolored from being carried in one's pocket, we expect to find the discoloration greater on the outside of the fold than on the inside, and greater nearer the edges than in the central portion; and such is the fact with some of the exhibits produced by Mr. Lawless in illustration. Then the wearing in the pocket would not account for the loss of starch and of strength and tenacity in the paper, and its disposition to fall to pieces. Another paper, older than this, viz. the copy made by Mr. Flemming of the receipt (No. 1) of March 22, 1890, was referred to, and that shows a discoloration, but not so deep as that of the "suspect." Mr. Lawless' counsel handed up to Mr. Carvalho while on the stand several letters written by Mr. Flemming to Lawless and to Mrs. Rathe, and asked him if they were not as much discolored as the "suspect." A slight examination of those documents showed that they had probably been prepared for that very purpose by being daubed with some coloring matter (Mr. Carvalho said coffee). The daubings were done apparently by the finger, leaving streaks of white. I refer to a letter of March 8, 1894, addressed to Mrs. Rathe; another of September 14, 1891, addressed to Lawless; another of February 3, 1892, addressed to Mrs. Rathe; another of May 21, 1891, addressed to her; and another of August 5, 1892, addressed to her. In all these the discoloration was not complete, plainly in patches,—the result of manipulation. In only two did the discoloration appear to be nearly or quite complete,— one of February 19, 1892, and one of December 1, 1890, to Mrs. Rathe. None of them showed the dilapidation and tendency to disintegrate apparent in the "suspect." An attempt was made to meet the evidence of Messrs. Carvalho and Leeds by that of a Mr. Field, but, without going into details, I think he failed to satisfactorily account for the present condition of the "suspect" or to explain the result of the experiments of Messrs. Carvalho and Leeds. Then there is anotherpiece of evidence on the face of the paper itself, which is of a very persuasive character. A dealer in typewriting machines, and an expert in typewriting, who furnished to Mr. Flemming the typewriter which he had in use in October, 1891, the date of the "suspect," shows very clearly that it was not written upon Mr. Flemming's typewriter, then in use. This results from a careful comparison of the letters and figures in the "suspect" with those contained in papers written on Mr. Flemming's typewriter. The defendant swears that he requested Mr. Flemming to make him a statement of the amount due for taxes, and that he received the "suspect" the next day by mail. Now, three things are highly improbable: First, that Mr. Flemming would have used half of a sheet of legal cap which had been folded, to write so important a paper; second, that he would have gone out of his office to the office of some typewriter to have it written; and, third, that he would not have kept a copy of it. The principal difficulty I had in adopting the complainant's theory of the treatment of this document was in the matter of the preservation of the signature. It has all the time seemed to me to be an extremely difficult thing to trace that signature with India ink (which is the only ink indestructible by acid) in such a manner as to escape detection. But the evidence that the paper has been purposely treated with destructive acid is so strong that I am unable to resist it; and the theory of the touching over of the signature with India ink finds some support in an examination of it by a miscroscope in comparison with a similar signature made with ordinary ink of about the same age. There is a marked difference in the appearance. The signature in the "suspect" is more smooth and glossy, and covers the whole surface; while the one made by ordinary ink breaks up into granules, and has a rougher and rocky appearance. This is the result of the observation of Prof. Leeds as well as my own, made in the presence of counsel. I can, therefore, place no reliance as evidence upon the omnibus receipt; and the conclusion that it is, in substance, a forged document, is, of course, fatal to the defendants' case.
A nice question was raised and discussed by counsel during the hearing, which I have not found it necessary to decide. Upon cross-examination, Peter Lawless stated, in substance, that in a suit brought against him in the city of New York he had presented as evidence a document or documents which the referee who heard the cause held and determined to be forged. Then, in order to charge the witness with having, in effect, been convicted of forgery in that case, an exemplified record of the whole proceedings in the suit, including the finding of the referee, was offered in evidence, subject to the objection of the defendants' counsel. The question raised, which I have not found it necessary to decide, was whether or not the record so received was entitled to the same force and effect as a conviction of forgery, or the uttering of forged paper knowing it to be forged, upon an indictment would have. I have endeavored to deal with the case, and believe I have dealt with it, without permitting my mind to be influenced by the record in question. I will advise a decree declaring that the defendants are not entitled to the two disputed credits of $1,685 and $2,600.