15 Gratt. 163 | Va. | 1859
The only question in this case is that raised by the instruction asked for by the defendant in error upon the trial. The declaration unlike that in Jackson v. Jackson, 10 Leigh 448, sufficiently avers a consideration for the draft or order which it describes, but as when it was produced at the trial no consideration was expressed upon its face and it was not stated to have been made “ for value received,” the question made was whether the jury could from the paper alone infer such a consideration moving from the defendant in error to the plaintiff’s intestate as would entitle him to recover without further evidence.
If the order in question were good as a bill of exchange it cannot be questioned that the party might have recovered upon it without averring in his declaration or proving at the trial that any value had been received for it, as such a bill is presumed to stand on valuable consideration and prima fade to import it. Bayly on Bills, ch. 1, § 13, p. 40; Macleed v. Snee, 2 Str. R. 762; Poplewell v. Wilson, 1 Id. 264; PhillishirJs v. Blackwell, 2 Maule & Sel. 395; Wilson v. Codman's ex'or, 3 Cranch’s R. 193, 207; Hatch v. Trayes, 11 Adolph & El. 702; 39 Eng. C. L. R. 207; Jones v. Jones, 6 Mees. & Welsb. 84; Bayly on Bills, ch. 9, p. 390; Coombe v. Ingram, 4 Dowl. & Ryl. 211. But I think it clear that this paper cannot be regarded as
So, again, if the paper in question contained an express promise to pay the sum mentioned upon which an action of debt might be maintained under our statute, I incline to think that the recovery might be had without further proof of consideration. If debt would lie upon the paper, it would be evidence of such indebtedness as would be a sufficient consideration for the promise to pay in the action of assumpsit. The case of Jackson v. Jackson, above cited, so far as it is of any authority, having been decided by a court equally divided, shows that it is not necessary in such a case even to aver a consideration. For the declaration without averring such consideration was sustained by the court below, and that judgment was affirmed by the division of this court. But it is unnecessary
The case of Jolliffe v. Higgins, 6 Munf. 3, might seem at first blush from the reporter’s syllabus of the point decided, to be somewhat in conflict with the principles above stated; but upon closer examination, I think the decision will be found to be in perfect harmony with them and to be abundantly sustained upon the case itself. Ro reasons are assigned by the court for affirming the judgment, but upon the report of the case, I think we can see ample grounds on which to vindicate its correctness without disturbing any of the principles to which I have adverted. The action was assumpsit and the declaration counted specially on the draft or order set out, and also for money had and received by the defendant to the use of the plaintiff. The plea was the general issue; and at the trial, the defendant demurred to the evidence. This consisted of the draft or order described in the declaration by which the drawer (the defendant) directed the drawee (Waite) to pay to the plaintiff the sum of one hundred and eight dollars and eighty-five cents which the order stated he (the- drawer) had lodged in the hands of the
But if the order could' not be treated as a bill of exchange, certainly from its terms it might be fairly and legitimately inferred that the defendant had had in his hands money belonging to the plaintiff which he had failed to pay over to him and which he falsely pretended by the order he had lodged in Waite’s hands for him. The amount therefore would clearly be recoverable in an action for money had and received and the demurrer to the evidence could not avail the defendant.
The court may therefore have thought either that
All contracts by our law must be either contracts by specialty or contracts by parol. If not by sealed instruments, they are parol whether verbal or in writing, and if in writing, whatever may be the rule of the civil law, or whatever the doubt created by the remarks of Lord Mansfield and Justice Wilmot in Pillans v. Microp, 3 Burr. R. 1668, et scqthere must be in general a sufficient consideration to support them, just as if they were proved by parol evidence only. The authorities for this proposition are numerous and familiar, and I deem it unnecessary to stop to cite any. Commercial paper and perhaps promises in writing for the payment of money on which debt would lie under our statute, constitute exceptions to the rule, but otherwise it is universal and pervading. Accordingly, the defendant in error recognizing the rule and its applicability to this case, asked the court to instruct the jury that they might infer the consideration from the paper itself, and the court gave the instruction asked. The whole case then is resolved into the enquiry whether the paper does of itself, furnish proof of a legal promise and a sufficient consideration ?
Now I apprehend that a paper of this character can only be said to furnish such proof, where the consideration is stated in it or it is stated to be for value received, or some equivalent, or where the terms in which it is expressed are inconsistent with any other theory than that it was upon a consideration. If those terms are just as consistent with the theory of a total want of consideration as they are with that of its existence, it would seem impossible to say that they afford such a legal presumption that the paper was founded on a consideration as would justify the jury
The court having given the instruction asked for, ignored all the other hypotheses than that of a debt due to the payee from the drawer or of value received by the latter; and as the jury were told they might infer a consideration from the paper itself, they could only regard it as peremptory to them to make that inference, because if they might infer it, it was their duty to infer it; and to say that they might infer it was equivalent to saying that they must infer it because it was a matter not depending on the weight of evidence or force of circumstance but simply upon the legal import of the paper itself.
I think the Circuit court erred in giving the instruction asked for, and am of opinion to reverse the judgment.
Allen, P. and Daniel, J. concurred in the opinion of Lee, J.
Moncure, J. concurred in the result.
Judgment reversed.