McSmithee's adm'r v. Feamster

4 W. Va. 673 | W. Va. | 1871

Maxwell, J.

The third ground assigned as cause of error is, that there was no issue upon the plea of non-assumpsit, and the court had no right to hear the cause until the issues had been made up.

The record shows that the plea of non-assumpsit was twice entered, once at the May term, 1860, and again at the September term, 1868, and that issue was made upon the plea entered first, which must have been overlooked by the plainfiff in error, when he prepared his assignment of errors.

But if the assignment of error were true in point of fact, it would not be error for which the judgment could be reversed. Code, p. 637, chapt. 134, § 3; Balt. O. R. R. Co. v. Faulkner, infra.

The first and second assignments of error relate to the refusal of the court to allow the defendant to prove the value of a certain tract of land, and that the plaintiff failed to attend the sale thereof.

The suit was an action of assumpsit to recover the amount paid for a single bill, assigned by McSmithee to the plaintiff, on the ground that the obligor ivas insolvent at the time the said single bill became due and payable. The defendant insists that the assignment was without recourse, and to support his pretension proved on the trial, that at the time of the assignment of the said single bill, by the said McSmithee to the plaintiff, there was a Avritten contract, (which the Avitness drew, signed by the plaintiff, which contract was lost and could not be produced at the trial;) that the plaintiff was to attend a certain sale of real estate belonging to the obligor, which sale was to take place under a decree of the circut court, to satisfy a balance of the purchase money due thereon, and make his money; but the Avitness could not recollect the exact terms of the contract, but stated that he knew there was a contract to the effect set out above; that his recollection was only as to the general import of the contract.

The defendant then offered to prove further the value of the land, and that the plaintiff did not attend the sale, but the court refused to hear the proof.

If the proof had shoAved that the contract referred to was a contract, that the assignment was without recourse, then the contract, or as it was lost, evidence of its contents Avould have been admissible in evidence under the general issue.

The right of action on the contract could only be for unliquidated damages, which could not be set off against the demand of the plaintiff in the action. Webster v. Couch, 6 Rand. 519.

The judgment complained of will have to be affirmed, with damages and costs to the defendant error.

The other judges concurred.

Judgment aeeirmed.