# Watts v. Collier

> Supreme Court of Louisiana · June 29, 1914 · 140 La. 99

URL: https://www.frixlaw.com/law-library/cases/7170168

## Case

- **Full name:** WATTS v. COLLIER, Sheriff
- **Court:** Supreme Court of Louisiana
- **Decided:** June 29, 1914
- **Citations:** 140 La. 99; 72 So. 822; 1914 La. LEXIS 1975
- **Precedential status:** Published
- **Opinion:** Dissent by Slidell
- **Judges:** Decree, Monroe, Niell, Slidell, Sty
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7170168

## Opinion text

Slidell, J.,
dissenting, said:
“In respect to this peculiar class of instruments, it seems to me courts, in admitting secondary evidence, should be careful to require as great an extent of testimony as can, with reasonable diligence, be obtained, the danger of forgery being so much greater in such' cases, and I may add, of error or mistake, in consequence of the illiterateness of the person purporting to be bound. It must be conceded that the proof that the subscribing witness was a man of good reputation would greatly aid in satisfying the mind. I think the tenor of our decisions and practice goes to require that extent of evidence, and I believe it would be a safe rule to do so.”'
*113 In Huddleston v. Coyle, 21 La. Ann. 149 , defendant denied her signature to the note upon which she was sued, and the court (quoting from Plicque & Lebeau v. Labranche, supra) said:
“The law has expressly provided the kind of evidence which may be produced to counterbalance the express denial of a signature or the averment that it is counterfeited.”
And it was held that the evidence required by C. P. art. 325, had not been produced.
In Succession of Leonard, 21 La. Ann. 523 , the succession was sued on five notes said to have been signed by the decedent, and. the administrator denied that they were so signed. The court quoted articles of the Code of Practice 324 and 325, and said:
“There are, * * * three kinds of proof by which a denial of signature may be overcome: First, the proof of witnesses who have seen the act signed; second, the proof of witnesses who know the signature, having frequently seen the defendant write and sign his name; third, the proof by experts or comparison of the writing. * * * The opponent has not attempted to introduce the proof of witnesses who knew the signature, nor the proof of experts, etc. He has, however, introduced the proof of a witness who saw the deceased sign the note for $250, which is a compliance with the law. * * * The opponent has only proved the signature to the note for $250, which should have been allowed and placed on the tableau.”
And there was judgment accordingly.
In Pinckard, Steele & Co. v. Hampton, 22 La. Ann. 439 , defendant was sued on a draft, the signature of which he did not admit, but alleged that he believed it to be forged, and the court, limiting the inquiry to the question of its genuineness, vel non, said:
“One witness swears that he was present when the draft was executed by defendant. Two other witnesses, plaintiffs, say that, ‘under false representations on the part of the defendant, the goods were shipped. After they were shipped, the draft sued on was given us by the defendant, with a pledge that he would send us cotton to pay the draft.’ And a fourth witness swears that he ‘has often seen defendant write his name; that he is very familiar with his signature; has known him for 20 years; says he believes the signature to the draft sued on to be Wm. Hampton’s genuine signature.’
“The defendant contends that the law is imperative in requiring that at least two witnesses must swear that they hnow the signature, because they have frequently seen him write and sign his name. And he refers to two decisions in 21 La. Ann. 148, 523 , to sustain this position. Those decisions simply affirm that article 325 of the Code of Practice provides how the plaintiffs shall prove the genuineness of defendants’ signatures when they are denied. Neither those decisions nor the Code affirm' the doctrine contended for by defendant In this case, one witness proves the signature, and his knowledge is derived from having been present when the party signed it; another witness proved the genuineness of the signature from his knowledge of the signature of the defendant, though he did not see him sign the draft in question. We think this a compliance with article 325 of the Code of Practice.”
Considering the fact that C. P. art. 325, requires that the plaintiff in the case there stated shall prove the signature of the defendant by “witnesses,” who have seen it signed, or who know it because they have frequently seen defendant write and sign it, we adhere to the view that, in such ease (i. e., in any case falling within the meaning of the article) there should be not less than two witnesses who are able to verify the signature, either in the one way or the other, and, under the last paragraph of the article, such testimony may be corroborated by the testimony of experts, or by comparison of handwriting, as provided by the Civil Code.
Our reconsideration of this case has, however, led us to the conclusion that it does not fall within the meaning of article 325 of the Code of Practice, but is rather within the principle enunciated in the case of Segond, Agent, v. Roach, supra, according to which the article in question was held not to cover the case of a lost note; for, if the article be inapplicable in the case of a lost note, because of the probable inability of the holder to find witnesses who, having seen it before the loss, could verify the signature from memory and from having frequently seen the alleged maker write and sign his name, a fortiori, is it inapplicable in case of a note bearing only a mark, which could not be verified in that way, even though the note were not lost. The article clearly contem *115 plates a ease in which the holder of the instrument shall have the opportunity of proving the denied signature in either, or both, of the specified ways, and, as was held in the ease cited, cannot be strained to reach a case in which one of those ways is excluded.
It is no doubt true, as was said in the dissenting opinion in Chaffe v. Cupp, supra, that, by reason of the illiterateness of a person who binds himself by a mark, rather than a written signature, the danger of error and forgery is greater in the one case than the other, and the safeguard provided by O. P. art. 325, is more needed in the case of the mark. But the question of the need is for the General Assembly to consider. The function of this court is to determine, not what might be done, but, what has been done, or intended to be done, by the General Assembly, and our opinion, as to the matter under consideration is that the article which we are called on to interpret is highly special, is in derogation of the general law of evidence, and, considered with reference to its terms and its consequences, cannot be applied, either as a whole or by dividing it, to instruments the parties to which appear to have bound themselves by their “ordinary marks,” rather than by their written signatures, and hence that other evidence than that contemplated by said article was admissible to establish the genuineness of the instrument sued on.
We are also of opinion, however, for the reasons which have been stated, that is to say, because the danger of the forgery of a mark and of imposition upon the illiterate person who binds himself in that way is greater than in the case of one who is able to write his signature and to read and understand what he signs, that, where the alleged maker of a mark (and particularly where the mark is invoked to deprive him of his homestead) denies that he made it, the evidence relied on in support of its genuineness should be of a character to leave no reasonable doubt in the mind upon that point, and that evidence we fail to find in this case. The case for the holder of the note sued on (defendant in injunction) rests upon the testimony of a single witness, which is wholly uncorroborated and flatly contradicted by the testimony of two witnesses for the plaintiffs in injunction.
Defendant’s witness (Mr. Bridgeman) testifies that he was working for defendant, Mc-Cranie, when, on December 1, 1908, the note sued on was given; that Watts had fallen behind in his account, and that McOranie told him to go out to Watts’ place and get him and his wife to sign the note and waiver of homestead; that he went to the place accordingly on December 1, 1908, and presented the note and waiver for signature; that Watts signed the note and the authorization to his wife, and that the wife, after hesitating for a while, signed the waiver; that, under McCranie’s instructions, he told them that, unless they so signed, McOranie would make- them no further advances of supplies ; that the note was given for the debt then due, and, after it was given, McOranie continued to make the advances. He further testifies that he next went to the Watts’ place on January 12, 1912, with a similar note and waiver, and that Watts affixed his mark, as then requested, but that his wife refused to affix her mark to the waiver, and that Mc-Cranie thereafter made them no advances of supplies. It appears, however, that he carried the second note away with him, and it was filed in evidence on the trial. The whole testimony given by Mr. McOranie reads as follows:
“Q. You heard Mr. Bridgeman’s statement that he conveyed this note to you, after it was signed? A. Yes, sir. Q. Did you or not refuse to sell goods to Prote Watts after his wife refused to sign the note? A. Yes, sir; that ceased our business relations. Q. Mr. Bridgeman’s *117 statement about conveying the note to you was correct? A. Yes, sir.”
Watts and his wife both admit that Bridge-man called at their place twice, but they and their daughter, Fannie, concur in fixing the-date of one of the visits as in July, and say that Bridgeman was then accompanied by a boy,, believed to be his nephew, who went into the yard with Boxie (the wife) and got some of the peaches which were then ripe. -The three witnesses deny that Boxie signed any paper at that time, or that anything was said about her signing, and, though Bridge-man speaks of having made the two visits, in December, 1908, and January, 1912, respectively, he does not deny having made the visit in Julf, accompanied by the boy, when the peaches were ripe, or explain what was done on that occasion.
The three witnesses for plaintiff deny that Boxie signed any paper upon the occasion of either of the two visits which they admit that Bridgeman made (and by “signed” we mean, afjjxed her mark, as both Watts and his wife are illiterate old negroes, who are incapable of writing their names), but we dismiss the testimony of the daughter upon that subject, save in so far as it relates to visit in July, since it shows that she had no definite knowledge of any other. Prote and Boxie Watts are, however, conceded to have been present at all the visits, whether two or three, that were made by Bridgeman, and they positively deny that Boxie signed upon either occasion. Their testimony is, in some respects, open to criticism, and Prote very frankly testifies that upon one of the occasions he endeavored to circumvent Mr. Bridgeman by pretending to touch the pen for the making of his mark when in reality (Mr. Bridgeman’s attention being distracted for the moment) he did not touch it, a maneuver which he seems to have' thought warranted him in shuffling somewhat in his testimony as to whether he had- signed both of the notes which have been produced or but one. There is no suggestion in the testimony, or elsewhere in the record, that Boxie was ever advised that any paper to which she is said to have affixed her mark contained a waiver of her homestead, and, be-yond the bare statement of Bridgeman, to the effect that McCranie continued to furnish supplies to Watts after the giving of the note of December, 1908, the record is silent as to the relations which subsisted between the Watts-es and McCranie from the date thus mentioned and January 12, 1912. It is, of course, possible that McCranie, whom we take to be a country merchant, made advances of supplies to Watts prior to December 1, 1908, without security of any kind, or even a note of hand, and demanded the note, with the waiver of homestead, only after the debt had become due and the Watts’ crop, such as it may have been, had passed beyond his reach, but transactions of that kind appear to us to be unusual, and where, as in this case, a homestead is said to have been waived by an ignorant old negro woman for a debt for which she was not bound and for which the homestead could not have been seized, even as against her husband, it looks to us as though, if done at all, it must have been done through ignorance.
Counsel for defendant say, in their brief:
“We submit that his [Bridgeman’s] testimony is corroborated by the other facts of the case, and to a-large extent even by the testimony of one of the defendants. The undisputed facts are these: Prote Watts had been trading with A. McCranie, and had fallen behind in his supply account. Mr. McCranie sent Mr. Bridge-man out to take a note, with a homestead waiver, for this balance, and the defendant, Prote Watts, did sign the note, and made Mr. Bridge-man believe he was signing the authorization to the waiver by placing his 'fingers around the pen, but not touching it. It would be silly to presume that Mr. Bridgeman was having Prote Watts sign authorization of the waiver of his wife, Boxie Watts, when she was refusing to sign the same. It is further shown that, the next year, Prote Watts and his wife, Boxie Watts, fell behind in their supply account, and that a note for that balance, with a homestead waiver, was requested by Mr. McCranie, and that the wife, Boxie Watts, refused to sign the waiver, and was told, as she had been the year before, that unless she signed the waiver, Mr. *119 McCranie would not furnish them further with supplies. She refused, and Mr. McCranie did not furnish them any further.”
The counsel probably prepared their brief (being the brief on the application for rehearing) without having the transcript before them, and have fallen into some errors as to its contents. Prote Watts’ testimony as to the deception practiced on Mr. Bridgeman, as we understand, relates to his signature to the note, and not to the authorization. It reads, in part, as follows:
“Q. Prote, you state that once — you thought it was the first time — when he came for you to sign the note, you never signed it; you made Mr. Bridgeman think you signed it, but didn’t really sign it; is that right? A. Yes, sir. Q. How did you do that? A. He wasn’t noticing what I was doing; he had the pen, and — I don’t know what he was doing; he wasn’t noticing — and I held my hand just this way (witness holds fingers in circular position, as though around something), and I didn’t touch it, and my old lady told me— Q. Don’t state what the old lady said. A. I just held my hand this way, and didn’t touch it. Q. You mean by that that you held your fingers around the pen, but didn’t touch it? A. I didn’t touch the pen; yes, sir. Q. Was that when Bridgeman was making your mark for you? A. That was when he was wanting to make the mark. Q. He thought you were touching it, and you weren’t touching it? A. No, sir; I wasn’t touching it.”
The first note is shown to have been dated December 1, 1908, and the second, January 16, 1912. It was not therefore “the next year” (as counsel state) after the giving of the first note that the second was requested, nor does the evidence show that the Wattses were behind in their supply account when, in January, 1912, that request was made.
We adhere, therefore, to the view that the testimony of Mr. Bridgeman lacks corroborar tion, and we conclude that, being both contradicted and uncorroborated, it fails to discharge the burden imposed upon the defendant in injunction of proving the genuineness of the homestead waiver upon which he relies.
The decree heretofore handed down is therefore reinstated and made final.
O’NIELL, J., concurs in the decree.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7170168. Public record. Not legal advice.