Garnett v. Mayo

10 F. Cas. 37 | U.S. Circuit Court for the District of Eastern Virginia | 1878

HUGHES, District Judge.

The motion is to set aside the verdict as contrary to the law and evidence, and as defective in form; and for a new trial. It is unnecessary to consider the technical ground relied upon in part by the plaintiff. My action will rest upon a reason of substance, to wit, that the verdict was contrary to the law and the evidence of the case. It was proved that Watts, the defendant, had had previous c( nversations about the bond, and had declared more than once that he would not sign the bond with only Dottier upon it as co-surety, but would sign it if 'Winston would go upon it as a co-surety. This he said in his testimony, that he had told Mayo, the principal in the bond, and had also told Alderdice, the obligee. Nevertheless, after these positive declarations of intention, the bond, which is the subject of this suit, was presented to ‘him just as it now is, and he signed it. He signed it although he had recently told Al-derdice that he would not sign without Winston’s name upon it. He stated to the jury before the case was submitted to the jury, in words which I took down myself: “Alderdice was not present, as I recollect, when I signed the bond.” Further on in his evidence he said again as I took him down: "I know that Mr. Cottier’s signature was on the bond when I signed it. I don’t recollect whether Alderdice was present when I signed the bond or .not” If Alderdice, the obligee, was not present to misrepresent or deceive the defendant Watts when he signed the bond, it is difficult to conceive how in law Watts is not liable. There was no evidence that Alderdice, in his interview with Watts previously to Watts’ execution of the bond, made any other representations than that the effect of the bond would be only to guarantee that the fixtures would not be removed from the factory. If, when the bond was brought to Watts for his signature, it had words to give it effect beyond that, and Watts signed it, Watts is bound, and it is not competent to prove previous conversations to vary its terms. No one but Mayo is shown by the evidence to have given Watts assurances that Winston would join him on the bond. If Watts after, as he. says, “peremptorily and positively” declaring to Mayo that he would not go on the bond without Winston, afterwards nevertheless went on the bond, it is difficult to imagine that he had not changed his mind; and it is more difficult to perceive how Mayo’s representations or promises to him or to Winston could in law release him from his obligation under hand and seal to the obligee of the bond. The evidence is dem- and uncontradicted, that Watts signed the bond just as it is; in the day time; in his own store; while in the full possession of his faculties; after his mind had been fully drawn to the consideration whether he would sign without Winston or not; while free from all extraneous influence over his free will and action; when it was obvious that Winston’s name was not on the bond, and when no attempt was made to deceive him into the belief that Winston’s name was on it. That the jury had great doubt of the truth of the pretension that Watts had signed on an understanding with Mayo that he was to get Winston’s name upon the bond, was shown by their asking to re-examine Watts after they had been for some time in retirement. This pretension is negatived also by the fact, that the bond in the shape in which .it was when Watts signed it was not drawn up for Winston’s signature. For these and other reasons I am so strongly inclined to the opinion that the verdict was contrary to both the law and the facts of the case, that I will set aside the-verdict.

[For subsequent, proceedings, see Cases Nos. 9,353 and 9,353a.]