136 Va. 227 | Va. | 1923
delivered the opinion of the court.
The plaintiff in error, Budowitz, hereafter called the defendant, complains of a judgment against him in favor of the Commonwealth of Virginia, at the relation and for the benefit of the Virginia Fur and Hide Co., Inc., hereafter called the plaintiff. The action is based upon a suspending bond, provided for by Code, section 6338.
The Virginia Fur and Hide Co., Inc., on February 19, 1921, recovered a judgment against N. Klaff, and upon the motion of Klaff this order was entered: “And the
The suspending bond thereby provided for was executed by Klaff as principal and the defendant, Budowitz, as security, March 5, 1921. The declaration in substance alleges that Klaff did not secure any writ of error and supersedeas to the judgment within the sixty days, and that because of the suspension of the judgment he was prevented from subjecting certain rents due to Klaff, which but for such suspension he could have collected by legal process.
The defendant pleaded to the action and there was a jury trial, resulting in a judgment for the plaintiff, which is here under review. •
It is assigned as error that the court misconstrued the effect of the suspending order and bond, in that instead of holding that the judgment was suspended for sixty days from February 19, the date of the order, it construed this order to provide for a suspension from its date to March 5, the date when the bond was executed and for sixty days thereafter, aggregating seventy-four days. In accordance with this view, the court admitted' evidence of payments of rent to Klaff, the judgment debtor, after the expiration of sixty days from February 19th; and also, “In passing upon one of the objections raised as to the admissibility of evidence, the cojirt stated in the presence and hearing of the jury, that the effect of the order of February 19, 1921, in allowing to
The proper construction of the statute, Code, section 6338, the order referred to, and the bond executed pursuant thereto, is the question presented.
The issue involved was whether or not, but for the suspension, the judgment creditor could have collected its judgment, or any part thereof, by means of garnishment of rents due by the tenants of Klaff, the judgment debtor, during the period when the judgment was suspended; so that whether or not these rents were liable to garnishment was a vital question. If true that the judgment debtor had in good faith and for valuable consideration, assigned them to Isaac Klaff prior to February 19, 1921, and that he was in fact the owner of such rents, then no such garnishment of them would have been effective. It is stated in the brief for the defendant here, that the reason the trial court excluded the evidence was “because the time for the continuance of the forbearance to foreclose was indefinite, the contract was required to be in writing under the seventh clause of the statute of frauds, Code, section 5561.” If this was the reason, we think it was unsound. It is settled that this clause of the statute is applied to contracts which show affirmatively that the performance thereof is postponed beyond the period of one year, and that it does not apply to such as may or may not be performed within that period. Seddon v. Rosenbaum, 85 Va. 928, 9 S. E. 326, 3 L. R. A. 337; Thomas v. Armstrong, 86 Va. 323, 10 S. E. 6, 5 L. R. A. 529; Richmond, etc., Ry. Co. v. Richmond, F. & P. Ry. Co., 96 Va. 675, 32 S. E. 787.
The court also sustained an objection by the plaintiff to another question asked the same witness. The question was, in substance, whether or not Klaff was insol
“I was perfectly familiar with the financial situation of N. Klaff on the 19th day of February, 1921. Being trustee in deed of trust on all his real estate, securing certain debts and representing the creditors so secured, I had made investigation of N. Klaff’s financial condition and was perfectly familiar therewith. He was at that time wholly insolvent and remained so for several months thereafter. All of the said N. Klaff’s real estate conveyed in the deed of trust aforesaid was sold by me as trustee on the 13th day of May, 1921, and the amounts realized therefrom were insufficient to pay the costs and expenses of the sale and the debts secured therein.”
We áre of opinion that the evidence was clearly admissible, and that the court erred in excluding it.
2. “The court instructs the jury that the measure of*236 damages in this cause is the damage the plaintiff might have suffered by reason of the suspension, and the court tells the jury that to have collected the rents shown in evidence the plaintiff would have been obliged to issue a garnishment and that if the jury believe that Klaff’s financial condition was such that had such garnishment been issued he would have been put into bankruptcy or the property sold under the deeds of trust before said rents could have accrued, they shall find a verdict only for the amount that the plaintiff could have collected by law from Klaff. And the burden of proof is on the plaintiff to show not only that rents accrued and were paid but that same could have been collected by law by the plaintiff had the judgment not been suspended.”
3. “The court instructs the jury that the burden of proof is on the plaintiff to show its damage. Mere proof that rents were paid is not enough. The plaintiff must show that under all the circumstances he could have collected said rents but for said suspension.”
It follows from what we have said already that we think the court erred in refusing these instructions. They state the principles of law applicable to the admitted facts of this case.
A part of the recovery of the plaintiff is based upon the fact that on the 26th day of April, 1921, after the suspension had expired, N. Klaff collected $170 rent from one of his tenants. At that time the suspending order interposed no obstacle to the interception of this amount by garnishment process, for the suspension had expired. As to this amount the judgment is plainly wrong.
For the reasons indicated, we shall reverse the judgment and remand the ease for a new trial to be had according to law.
Reversed.