On appeal from the Camden County Circuit Court.
For the appellant, Walter S. Keown.
For the respondent, Boyle & Archer (William T. Boyle, of counsel).
The opinion of the court was delivered by
DALY, J. These two separate suits, one by Westmont National Bank against Clara Payne, and the other by the same plaintiff against James Payne, were tried together in the Camden County Circuit Court. The suits were based upon notes, both bearing the same date, November 30th, 1928, each for $6,000, and made payable each to the order of Westmont National Bank, on demand. It is conceded that the facts in each case are in substance the same. The jury rendered verdicts in favor of each of the defendants, and from the two judgments on the verdicts the plaintiff appeals.
Harold Kirkbride was the cashier of the Westmont National Bank. For ten years he and the Paynes had been friends. The Paynes were a rather elderly couple, living in very modest circumstances and, judged by their testimony, were persons of but little, if any, business experience. Kirkbride, who frequently visited this couple, called on them on Sunday, January 27th, 1929, and, as testified to by the Paynes, obtained their signatures to two pieces of paper which were blank to them. When, at the trial, Mrs. Payne was asked how her signature was obtained she answered, "why, Mr. Kirkbride come in our house on a Sunday night, on the 27th of January, and he sat down a few minutes and he asked Mr. Payne -- he always called him 'Dad' -- he said, 'Dad, I want you to do me a favor,' and Mr. Payne says, 'I told you, Harry, anything will be in my power, I would do for you,' and he put his hand in his pocket and pulled out this paper, and before Mr. Payne signed it, he says, 'Harry, will this hurt our home or take anything from us?' He says, 'no, not whatsoever, harm either one of you,' and that was all." She further testified the paper was "folded up" and "there was nothing on it to read;" that she did not know that she was signing a note, and that nothing was said at the time about a note or about the Westmont bank. She further asserted she never owned any stock in any Brown Tube Company and there was no discussion about such stock.
The testimony of the husband, James Payne, was essentially the same as that of Mrs. Payne, he adding that when Kirkbride asked him if he would do him, Kirkbride, a favor, his answer was "yes, if I could ever do him a personal favor, because he done me one once when I was out of work." Payne also testified that he was just given "a piece of paper to sign," and that nothing was said about a note, or the Westmont bank, and there was not anything said about $6,000, or $12,000 or about any money.
Joseph B. Allen, an uncle to Mrs. Payne, who lived with the Paynes, testified he was present at the signing, that it was done on a Sunday night.
Harold Kirkbride testified that the notes were signed on
a Sunday, "either the latter part of January or early in February," of the year 1929, and that the notes were not filled out at the time when they were signed.
On or about April 12th, 1929, an auditing committee of the board of directors of the bank, making an examination of the bank's securities, discovered in the note file or box of the bank, seventeen promissory notes, aggregating $97,500, and included in these seventeen were the two sued upon in these cases. The pieces of paper to which the Paynes had attached their signatures on Sunday, January 27th, 1929, and which were believed by them to be blank pieces of paper, according to their testimony, were actually blank forms of collateral notes. These forms, with the signatures at the bottom of each, had been filled out by Kirkbride by dating them as of November 30th, 1928, and making them promissory notes for $6,000 each, payable on demand, to the order of the Westmont National Bank, and, further by asserting in each of the notes that the signer thereof had deposited as collateral security for the payment thereof "four hundred shares Brown Tube -- cash value $7,000." Accompanying each of these notes were five ...