82 Va. 784 | Va. | 1887
delivered the opinion of the court.
This is an appeal from a decree of the circuit court of Fauquier county, rendered at its December term, 1883. The appellant and the appellee, having been engaged in extensive business transactions together, had a settlement in February, 1872, and the appellee gave his note to the appellant for $2,212, payable three years after date, with interest from February 15, 1872; and, continuing in business, on the seventh of April, 1874, they again settled with each other, and the appellee executed his note for $3,788, payable ten years after date, with interest from date; and the appellee, Shipman, and his wife conveyed two tracts of land in Fairfax county to a trustee, to secure the payment of these two notes, on the 20th of May, 1874; one tract already being encumbered by a trust deed to secure a debt of $4,000 to W. W. Corcoran. The note of February, 1872, for $2,212, becoming due and remaining unpaid, in January, 1881, a bill was filed by the appellant to subject the lands of the appellee to the incumbrances thereon, in their order. In the meantime, the business having been further carried on by the parties with each other, the appellant had instituted, in August, 1880, an action against the appellee, at. law, on the matters of open account unsettled between them. This suit was referred to a commissioner for account and report;, and the common law suit having been referred to a referee, and the evidence taken in that suit in the form of depositions, the same was offered and admitted as evidence in this suit. Much testimony was taken in this suit, and the commissioner reported, showing the balance due on the note of February,
Upon appeal here, there is no question of law raised which is controverted. The whole controversy is one of fact over disputed items in the controverted transactions between the parties. The appellant assigns error in admitting improper credits to the appellee, and in crediting admitted valid offsets on the note instead of on the account; and the appellee, Shipman, assigns as error, under rule nine of this court, errors in rejecting an item of $800 claimed as a credit by him, and the action of the court in refusing to decree in his favor for his costs.
In considering the questions raised here on appeal, we will observe that the testimony was very conflicting, especially upon these disputed items, and of the parties in interest; they
In this case the several items of controversy need not be specially considered here in detail. The conclusion arrived at by the court and the commissioner is in accordance with the weight of the testimony. As to the item of $748.06 credited on the first note, it is admitted by the appellant in his settlement when the second note was given; and his defense that the receipt was retraced, and thus forged over his signature, is not sustained. As to the payments credited on the note, admitted to be just, but claimed to belong to the transactions embraced by the open account, there was no application of these by either party, and in such case the law makes the appropriation according to the equity and justice of the case, and so that it may be most beneficial to both parties; and there is no just ground why these credits should not be appro
Upon the whole case, we are of opinion to affirm the decree of the court below in all respects. The decision as to costs was within the discretion of the court, and in this case this discretion was soundly exercised. The decree must be affirmed.
Hinton, J., dissented.
Decree affirmed.