111 Va. 240 | Va. | 1910
delivered the opinion of the court.
Numerous errors are assigned on this writ of error, but most if not all of them depend upon the question, whether or not the bonds sued on, which were given for an existing, indebtedness, were a novation of the prior contract.
It appears that Robert Barnes, the father of the petitioners (his three sons), made a conveyance to them of valuable-lands by which, among other things, he required each of them to pay certain sums to their three sisters at designated periods, but with the provision that if either of the sisters died without issue living before any part of the amount directed to be paid her became due and payable, then such amount as was not due was not to be paid. The sums directed! to be paid the sisters were made a charge or lien upon the lands conveyed. One of the sisters, the intestate of the defendant in error, died before all the money directed, to be paid her became due and payable. Before her death her brother, W. A. Barnes, desiring to sell the lands conveyed to him free of the lien or charge upon it, made an arrangement with his sisters by which they agreed to release the said lien and charge, and to accept the bonds of their
The obligors in those bonds claimed that there was a failure of consideration, to the extent that the sum evidenced by the bonds was not due and payable to their sisters at the time of her death, she having died without issue living before said sum became due and payable, they were not liable for it under the terms of their grantor’s deed, and made defense on this ground.
If the transaction or arrangement between the brothers and sisters, by which the latter released the lien or charge on the lands and the former executed their bonds for the payment of said sums, was a novation of the contract evidenced by their father’s conveyance to his sons, the defense relied on was not good; if that transaction or arrangement was not a novation of the original contract, then the defense was a valid one.
Whether or not the taking of a new security of equal dignity is to be treated as a novation or substitution for and an extinguishment of a prior indebtedness, is a matter of intention to be determined from all the facts and circumstances of the case. Morris v. Harvey, 75 Va. 726, 732; State Bank of Va. v. Dom. Sewing Machine Co., 99 Va. 411, 39 S. E. 141, 86 Am. St. Rep. 691; Coles v. Withers, 33 Gratt. 186-7; Fid. Loan, &c., Co. v. Engleby, 99 Va. 168, 37 S. E. 957.
The principles which govern in determining whether or not there has been a novation are pretty fully discussed in the cases cited and need not be reiterated.
The action of the court refusing to admit certain evidence offered by the plaintiffs in error, and in admitting certain evidence offered by the defendant in error did not prejudice the plaintiffs in error. The object of the evidence rejected was in effect to show that at the time the agreement between
Nor were the plaintiffs in error prejudiced by the evidence introduced over their objection by the defendant in error. Even though the plaintiffs in error were not bound by the recital in the release deed that the debts due the daughters were discharged, that as we have seen was the legal effect .of the transaction between them and their sisters.
The rejection of evidence which could not benefit, and the admission of evidence which could not prejudice, even if erroneous, is no ground for reversal.
Nor were the plaintiffs in error prejudiced by the action of the court in giving and refusing instructions, for upon the case made and offered to be made there could not have been properly found any other verdict than that which the jury rendered. Bryan v. Nash, 110 Va. 329, 66 S. E. 69.
Upon the whole case we are of opinion that there is no error in the judgment complained of, and that it should be affirmed.
Affirmed.