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control school affairs of the district, as it is necessary for private, corpoand plan and build schoolhouses. The rations or individuals to prepare them. court says:

"Power in the., school These latter, when their structures are trustees to determine for themselves erected in the city, must prepare their all, matters: concerning the school plans therefor according to the buildstructures to be, erected, to the ex- ing regulations thereof, and submit clusion of the right of the municipali- them for inspection to the municipality to impose police regulations, can- ty, so that the regulations which the not be implied from a grant solely city imposes may be conformed to. of power to control school affairs of And as we do not think the provisions the district and plan and build school- of the school law

constitute houses. The constitutional right of a general law relieving it from comthe municipality to impose reasonable pliance with the building regulations police regulations within its territorial of the city of Pasadena, it was relimits, while it may be controlled by quired to submit itself to and be a general law, still such law must be governed by them."

a positive and general law upon : And in Bowers v. Wright (1877) 4 that subject. The power conferred on W. N. C. (Pa.) 460, where a statute the trustees of the school district to had been passed empowering the board erect schoolhouses is to be taken on- of education of the city of Philadelphia ly as a grant of power to effectually to build a schoolhouse, all matters in carry out the purpose of their creation. connection with the building of said As a public agency of the state, the schoolhouse "to be under the direction trustees would have no such power un- of said board of education," and by less it was specifically granted. As another statute power was granted granted, it is no different as a power to the board of building inspectors of from what is possessed under the cor- the city to control the matter of işsuporation laws of this state by private ing permits, for the erection of buildcorporations, as far as controlling cor- ings, it was held that the board of porate property and the right to erect education was required to obtain a structures thereon is concerned, nor permit from the board of building indifferent from the right which the own- spectors before , erecting a school ers of land have to control it and erect building, and that they could not build buildings upon it. ! The erection of a schoolhouse which did not conform school buildings necessitates the mak- to the regulations of the building ining of plans therefor, just the same spectors.

R. P, D.

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MELVILLE KLEIN et al., Piffs. in Certiorari,



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, Tennessee Supreme Court, – January 19, 1924.

(- Tenn. —,257 S. W. 861.) Evidence - transaction with decedent - signature to note.

1. The payee of a lost note is not precluded, in an action to enforce pay. ment of it by the maker's execútor, from testifying that he knew the handwriting of testator, and that the signature upon the note was his, by the statute prohibiting either party to 'an action against an executor to testify against the other as to any transaction with testator.

[See note on this question beginning on page 460.] Appeal review of directed verdict. tions of the one against whom the ver

2. In reviewing a decision upon a dict was directed. directed verdict, it is necessary to re- [See 2 R. C. L. 198; 1 R. C. L. Supp. view the facts, taking the view of the 437; 4 R. C. L. Supp. 91.] evidence most favorable to the conten

(- Tenn. 257 S. W. 861.) Witness - qualification - knowledge note in question, for the purpose of of handwriting of decedent.

qualifying himself to testify as to the 3. The payee of a lost note executed genuineness of the signature, in an by a person since deceased cannot action against the maker's executor testify that he became acquainted to enforce payment of the note. with the handwriting of the maker, [See 11 R. C. L. 620; 2 R, C. L. Supp. fully or partially, by reason of the 1285.)

CERTIORARI to the Court of Civil Appeals to review a judgment reversing a judgment of the Circuit Court for Shelby County (Young, J.) in favor of defendants in an action brought to enforce payment of a lost note. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Walter Chandler and J. H. C. 42, 18 S. E. 79; Simmons v. Havens, Shepherd, for plaintiffs in certiorari: 101 N. Y. 427, 5 N. E. 73; Eagan v.

The evidence attempted to be intro- Powers, 51 Hun, 642, 4 N. Y. Supp. duced by plaintiff as to the handwrit- 592; Wing v. Bliss, 55 Hun, 603, 8 N. ing of decedent was inadmissible. Y. Supp. 500; Dolan v. Leary, 68 N. Y.

Mason V. Spurlock, 4 Baxt. 554; Supp. 91; Boyd v. Boyd, 164 N. Y. 234, Montague v. Thomason, 91 Tenn. 168, 58 N. E. 118; Walker v. Pittman, 18 18 S. W. 264; Roy v. Sanford, 140 Tenn. Tex. Civ. App. 519, 46 S. W. 117; Wil382, 204 S. W. 1159; Stuckey v. Bellah, liams v. Farmers' Nat. Bank, Tex. 41 Ala. 700; Neely v. Carter, 96 Ga. Civ. App. 201 S. W. 1083; Sawyer 197, 23 S. E. 313; Holliday v. McKinne, v. Choate, 92 Wis. 533, 66 N. W. 689; 22 Fla. 153; Ware v. Burch, 148 Ala. Slavin v. Ackman, 119 Wash. 48, 204 529, 42 So. 562, 12 Ann. Cas. 669; Kirk- Pac. 816; Josephs v. Briant, 115 Ark. sey v. Kirksey, 41 Ala. 626; Merritt v. 538, 172 S. W. 1002, Ann. Cas. 1916E, Straw, 6 Ind. App. 360, 33 N. E. 657. 741; Johnson v. Bee, 84 W. Va. 532, 7

Mr. Raymond 0. Valley, for defend- A.L.R. 252, 100 S. E. 485. ant in certiorari: A party to a suit, interested in the

Malone, Special Judge, delivered recovery, can testify that an instru- the opinion of the court: ment which is the basis of the suit or This case comes before the court defense is in, or is signed in, the hand- upon petition for certiorari. writing of a deceased person, an oppo- The respondent, Bruce York, filed site party in interest, after qualifying

a claim against the estate of W. J. by showing that he knows the handwriting of the deceased.

Klein, deceased, in the probate court Minnis v. Abrams, 105 Tenn, 662,

of Shelby county, in the principal 80 Am. St. Rep. 913, 58 N. W. 645;

sum of $675, basing his claim upon Royston v. McCulley, Tenn. -, 52

a note which had become lost.

He L.R.A. 899, 59 S. W. 725; 30 Am. & filed a copy of the note with his Eng. Enc. Law, 2d ed. 1033; Sankey claim. The claim having been alv. Cook, 82 Iowa, 125, 47 N. W. 1077; lowed, the petitioners here, benefiRe Brown, 92 Iowa, 379, 60 N. W. 659; ciaries of the estate of the said W. Ferebee v. Pritchard, 112 N. C. 83, 16

J. Klein, appealed the case to the S. E. 903; Rush v. Steed, 91 N. C. 226; Re La Grange, 191 Iowa, 129, 181 N.

circuit court, where the same was W. 807; Britt v. Hall, 116 Iowa, 564,

tried before a jury, under a plea of 90 N. W. 340; Bryan v. Palmer, 83 Kan.

non est factum interposed by the 298, 111 Pac. 443, 21 Ann. Cas. 1214;

administratrix of the estate. After Dillon v. Gray, 87 Kan. 129, 123 Pac. certain evidence, including the evi878; Daniels v. Foster, 26 Wis. 686; dence of the respondent York, had Munger v. Myers, 96 Kan. 745, 153 Pac. been heard, the trial judge instruct497; Fitch v. Martin, 84 Neb. 745, 122 N. W. 51; State ex rel. Peoples v.

ed the jury to bring in a verdict disMaxwell, 64 N. C. 313; Halyburton v.

allowing the claim, which was acDobson, 65 N. C. 88; Ballard v. Ballard,

cordingly done. 75 N. C. 190; Rush v. Steed, 91 N. C.

York, the plaintiff below, ap226; Armfield v. Colvert, 103 N. C. 147, pealed the case to the court of civi 9 S. E. 461; Sawyer v. Grandy, 113 N. appeals, which court, in an opinion by Mr. Justice Clark, reversed and put up this note as collateral; that remanded the case.

Dr. Graham claimed to have given The question earnestly and ably the note back to plaintiff, but if he debated here is this:

did plaintiff could not find it, and Could York, the claimant and did not know what had become of it. plaintiff below, be allowed to testify after diligent search; that the note, that he had had in his possession a while in the possession of Dr. Granote in the handwriting of the de- ham, became due, was not paid, and cedent, and bearing the genuine sig- was protested; that he had a certinature of the decedent, proving the fied copy of the protest by the noamount and terms of the note by tary public, and filed the same as an other witnesses ?

exhibit. On behalf of the petitioners it is

He further testified as follows: claimed that to permit such action

Q. I believe you stated you had is to permit an evasion of the Ten

several different transactions with nessee statute (Shannon's Comp. § the deceased? 5598), which provides: "In actions

A. Yes, sir. or proceedings by or against executors, administrators, or guardians, quainted with the handwriting of

Q. I will ask you if you are acin which judgments may be ren

the deceased ? dered for or against them, neither

A. Yes, sir. party shall be allowed to testify

Q. I will ask you if the handagainst the other as to any transaction with or statement by the testa

writing and the signature of this

note that you had in your possession tor, intestate, or ward, unless called to testify thereto by the opposite

was in the handwriting of the de

ceased? party. 1869–70, chap. 78, § 2.”

A. Yes, sir. On behalf of the respondent it is insisted that proving the signature

All of this testimony was objectof a note was not proving a transac- ed to by the administratrix, on the tion or conversation with, or state- ground that it was testimony relatment by, the decedent within the ing to a transaction with a deceased meaning of this act.

person, and was incompetent under The trial judge adopted the view the statute already mentioned. of the petitioners, and the court of While this objection was being arcivil appeals accepted the view of gued, and before the court ruled on the respondent.

the admissibility of the testimony, As the case was decided below on two other witnesses for plaintiff apa directed verdict, it becomes neces- peared in court, and for their consary to review the facts, taking that venience they were then examined.

view of the evidence The first of these witnesses, Appeal-review of directed ver- most favorable to George B. Coleman, testified that he

the contentions of was called by the National City the plaintiff below, against whom Bank to protest a note; that he went the verdict was directed. Wildman to the bank and was given a note Mfg. Co. v. Davenport Hosiery signed by W. J. Klein, the decedent, Mills (1923) 147 Tenn, 551, 249 S. indorsed by Dr. Frank Graham and W. 984.

by Bruce York, payable at the First The plaintiff below, Bruce York, National Bank; that he presented was allowed to state that he was the note to the First National Bank, acquainted with the decedent; that which declined to pay it; that he he had several business transactions thereupon, as a notary public, prowith him; that he had a transaction tested the note for nonpayment, his involving a note; that the note was certificate of protest containing a not in his possession; that he bor- verbatim copy of the note, which rowed money from Dr. Graham, and was read into the record as follows:


(- Tenn. 257 8. W. 861.) "$675.00

Memphis, Tenn. the signature on the note is in the

March 23d, 1920. handwriting of the deceased. The "Eight months after date I prom- court holds that the signature on the ise to pay to the order of Bruce York note is a part of the transaction and six hundred and seventy-five ($675) part of the matter in contest bedollars with interest at the rate of tween them, and that it is incom8% from date until paid. For value petent for the plaintiff, an interestreceived, and all attorneys' fees and ed party, to testify that the signaother costs and charges incurred in ture on the note is in the handwritthe collection of this note. Payable ing of the deceased, W. J. Klein." First National Bank, Memphis, Ten- At the end of this testimony the nessee.

plaintiff rested, and counsel for the “[Signed] W. J. Klein. . administratrix made a motion for a "Pay to Dr. Frank Graham. directed verdict, whereupon the

"Bruce York." court granted the motion and inThe witness identified this copy as

structed the jury that, "under a rule

of law, there can be no recovery in an accurate copy in every detail of the note which he protested, and

this suit now, under the evidence filed as an exhibit to his testimony a

adduced in this case relative to the duplicate carbon copy of the certifi

note.” cate of protest.

In his motion for a new trial the The other witness, Dr. Frank plaintiff York specified, among othGraham, testified that he loaned er grounds, the following: Bruce York some money, and took

(a) That the court was in error as collateral security a note for "600

in refusing to allow the following some odd dollars that was signed by testimony of plaintiff, Bruce York, Mr. Klein;” that the copy handed

to go to the jury: him was, according to his recollec- Q. I will ask you if the handtion, a copy of the note which Mr. writing and the signature of this York gave him as collateral secu- note that you had in your possession rity; that the note fell due while in was in the handwriting of the dethe possession of witness, and was ceased ? not paid, and witness had the Na- A. Yes, sir. tional City Bank protest the same

(b) That the court was in error for nonpayment; that as a result of certain transactions, stated in detail, under the testimony adduced.

in directing a verdict for defendants he treated the loan as paid, and re

It seems to be conceded in the turned to York the Klein note which had been put up as collateral; that

briefs of both parties that the dehe had not seen this note since he

terminative question is the compegave it to Mr. York; that he loaned

tency or incompetency of the plainthe money to York between Novem

tiff's evidence, already quoted, as to ber and December, 1920, as he rec

the handwriting and signature of ollected; that he does not recall pay

the note. ing any particular attention to the There are two conflicting lines of signature of the note, but does re- cases on this question. call the fact that the note was signed The petitioners cite and rely upon by a man who owned his farm at the cases of Neely v. Carter, 96 Ga. that time, and witness believed this 197, 23 S. E. 313; Holliday v. Mcwould make the note perfectly good. Kinne, 22 Fla. 153; Ware v. Burch,

The court then ruled on the ob- 148 Ala. 529, 42 So. 562, 12 Ann. jection to plaintiff's testimony, say- Cas. 669; Kirksey v. Kirksey, 41 ing: “In this case it is sought to Ala. 626; Merritt v. Straw, 6 Ind. show, if the court understands App. 360, 33 N. E. 657. aright, that the plaintiff may testify They also rely upon the reasonas to whether he knew the hand- ing of this court in the cases of writing of the deceased and whether Mason v. Spurlock, 4 Baxt. 554;

Montague y. Thomason, 91 Tenn. shown in the following extract from 168, 18 S. W.264; Roy v. Sanford, Neely v. Carter, supra, where the 140 Tenn, 382, 204 S. W. 1159. court, after stating that the alleged

The respondent here, plaintiff be- grantee under a lost deed could not low, in support of the judgment of testify to the fact that she saw a dethe court of civil appeals, insists ceased grantor sign the deed, furthat the question is decided by our ther says (96 Ga. 201-203): “We own cases of Minnis v. Abrams think it quite clear that she could (1900) 105 Tenn. 662, 80 Am. St. not be permitted to testify indirectly Rep. 913, 58 S. W. 645, and Roy- to that which she would not be perston v. McCulley (1900) Tenn. mitted to swear to directly. To

52 L.R.A. 899, 59 S. W. 725. swear to the genuineness of a sigAnd he further contends that the nature purporting to have been clear weight of authority supports made by one of the deceased makers this view as to competency of this would only be another way of provevidence-citing 30 Am. & Eng. ing the physical fact of execution. Enc. Law, 2d ed. 1033; Sankey v. Such proof would be merely secondCook (1891) 82 Iowa, 125, 47 N. W. ary evidence, the object of which 1077; Re Brown, 92 Iowa, 379, 60 would be to supply the place of diN. W. 659; Ferebee v. Pritchard, rect evidence of actual execution, in 112 N. C. 83, 16 S. E. 903; Rush v. a case where higher and more satSteed, 91 N. C. 226; Re La Grange isfactory proof of that fact was not (March, 1921) 191 Iowa, 129, 181 forthcoming or available. The polN. W. 807; Britt v. Hall, 116 Iowa, icy of the law, which clearly would 564, 90 N. W. 340; Bryan v. Palmer exclude Mrs. Carter from giving (1910) 83 Kan. 298, 111 Pac. 443, direct evidence of execution, like21 Ann. Cas. 1214: Dillon v. Gray wise would render her incapable of (1912) 87 Kan. 129, 123 Pac. 878; giving evidence of a secondary charMunger v. Myers (1915) 96 Kan. acter which would accomplish the 745, 153 Pac. 497; Fitch v. Martin same result, and which, indeed, (1909) 84 Neb. 745, 122 N. W. 51; would be worthless for any other State ex rel. Peoples v. Maxwell, 64 purpose than that of supplying the N. C. 313; Halyburton v. Dobson, 65 very evidence she would be precludN. C. 88; Ballard v. Ballard, 75 N. ed from giving by direct and posiC. 190; Armfield v. Colvert, 103 N. tive proof. No other view of the C. 147, 156, 9 S. E. 461; Sawyer v. question seems tenable.

The Grandy, 113 N. C. 42, 18 S. E. 79; temptation of a witness to swear Simmons v. Havens (1886) 101 N. falsely when offered to supply secY. 427, 5 N. E. 73; Eagan v. Pow- ondary evidence is just as strong as ers, 51 Hun, 642, 4 N. Y. Supp. 592; when the witness is called upon for Wing v. Bliss, 55 Hun, 603, 8 N. Y. positive proof; while the fear of Supp. 500; Dolan v. Leary_(1901; punishment for perjury, remote at Sup.) 68 N. Y. Supp. 91; Boyd v. best, is almost if not entirely reBoyd, 164 N. Y. 234, 58 N. E. 118; moved where a witness merely unWalker v. Pittman (1898) 18 Tex. dertakes to state his opinion as to Civ. App. 519, 46 S. W. 117; Wil- the genuineness of a given signaliams v. Farmers' Nat. Bank (1918) ture, instead of positively asserting - Tex. Civ. App. - 201 S. W. direct knowledge of the fact of the 1083; Daniels v. Foster, 26 Wis. execution of a paper." 686; Sawyer v. Choate, 92 Wis. 533, It is further argued in the able 66 N. W. 689; Josephs v. Briant brief filed on behalf of petitioners (1914) 115 Ark. 538, 172 S. W. that to permit plaintiff's evidence in 1002, Ann. Cas. 1916E, 741; John- the present case would be to estabson v. Bee (1919) 84 W. Va. 532, 7 lish a rule whereby estates of deceA.L.R. 252, 256, 257, 100 S. E. 486. dents might be defrauded in the fol

1. The reasoning of the line of lowing manner: cases cited by the petitioners is An unscrupulous person might

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