66 W. Va. 336 | W. Va. | 1909
The declaration in assumpsit contains the com)mon counts, and two special counts. The instrument counted upon in the special counts is signed and sealed by A. C. Houston and fifty three other persons and firms, defendants, as follows: “Twelve months after date, with interest from date, we promise and bind ourselves to pay J. D. Logan, President of Com. of Monroe Central B. B. on survey of Bights of Way, five thousand dollars, value received. It is agreed first, that this obligation is of no force until fifty or ’more responsible persons have signed the same. 2nd. That the proceeds of this note are to be expended in making a location survey as far as m’ay be necessary, and paying other necessary expenses attending the
The plaintiffs in error, C. P. Bradley and twenty three others, demiurred to the declaration as finally amended, which was overruled; and they then tendered four special pleas in writing, to the filing of which plaintiff objected, and, the objection being sustained and the pleas rejected, C. W. Bradley and W. P. Riley, two of said plaintiffs in error, each tendered a.
Some twelve errors are assigned in the petition of plaintiffs in error; not all of them are relied on in argument here. We will consider those only which appear to us to be meritorious. First, the demurrer to the declaration. The common counts are concededly good. The first special count we think is also good. It alleges a contract under seal importing a consideration, and containing a promise to pay money, a breach thereof, and an assignment thereof to plaintiff, for a valuable consideration, etc. Oyer of the writing obligatory was not craved, and it was not thus made a part of the record so'as to render this count bad on demurrer for failure to allege fulfillment of the conditions on which the promise was made to depend. The second special count in which the entire contract is pleaded distinctly alleges fulfillment of the only conditions on which payment was made to depend. This is all that is required. Kern v. Zeigler, 13 W. Va. 707, 3 Syl. No other defects in the declaration are pointed out in briefs or argument, and, perceiving no defects therein, we must hold the declaration good on demurrer.
Next, did the court err in rejecting the four special pleas tendered by some of the plaintiffs in error? The order rejecting them shows they were simply tendered; there was no order filing them, or formally making them part of the record, and the order making the tender thereof shows no exception to the action of the court rejecting them. Plaintiffs in error rely on the bill of exceptions or certificate of evidence, which recites not only the tended of the pleas and the rejection thereof, but also that “defendants again excepted”. Are these recitals in the order and certificate of evidence sufficient
- In the case we have in hand, however, we have no order of the court showing any exception by defendant to the ruling of the court rejecting the pleas. Is the recital thereof in the bill of exceptions sufficient? In B. & O. R. R. Co. v. Bitner, 15 W. Va. 455, 461, the defendant tendered a plea of set-off, accompanied by a bill of particulars, which was rejected, and the defendant took a bill of exceptions reciting the plea, but not the bill of particulars; and to the argument presented that, because the bill of particulars accompanying the plea was not also formially made a part of the record by being included therein, the bill of exceptions was defective and could not be considered, the Court, at page 460-1 says: “General pleas, such as not guilty, non-assumpsit, conditions performed, &e., are in our practice constantly pleaded orally, and a note only of their being filed is made .on the record, such pleas being very rarely written out. This Court, as well as the court of appeals of Virginia, constantly hold this mode of filing such pleas is sufficient. If such a plea was rejected by a court, it
We may then next consider the pleas themselves, the rejection of which is complained of. First it is urged against them that they are not verified by affidavit, as required by section 3891, Code, 1906, and were properly rejected for this reason alone. If these pleas be of the class or classes to which that section relates, this objection would seem to be good. The chapter of the Code, in which said section is found relates to “payments and set-off,” and authorizes a defendant “in any action on a contract,” to' “file a plea, alleging any such failure in the consideration” thereof, “or fraud in its procurement * * * * * * * as would entitle him, either to recover damages at law from the plaintiff, or the person under whom the plaintiff claims, or to relief in equity, in whole or in part, against the obligation of the contract; or * * * * * * * * ; and in either
We do not think plea number one fails under section 3891. It is neither in form or substance a plea of failure of consideration, or a plea alleging fraud in the procurement of the contract. It is, properly speaking, what it purports to be in its conclusion, a plea of non esi factum. Evidence of want of c'om-
Pleas two and three are in form at least, if not in substance;, pleas of failure of consideration, and fraud in the -procurement of the contract. Whether substantially good, it is unnecessary for us to sa-y, for under said section 3891, they were properly rejected for want of verification. As to plea number two it pleads matter of contract not covered by the writing sued upon, and we think quite inconsistent with and variant from the terms thereof. Could evidence be received under such a plea to vary or contradict the very terms of the written instrument? We hardly think so. As to plea number three, it avers in effect that defendants were deceived by the alleged representations of Logan, President, that the contract sued on was a petition, and not their promise to pay money. It is not averred that defendants were ignorant and could not read the contract, or that the paper was falsely read to them. Certainly the paper does not purport to be a petition; it is a plain promise to pay on the condition named. Defendants could not have been deceived thereby. We do not think this plea presented a substantial issue.
Another point. of error made, which we will consider, is that no issues were joined on the special pleas of defendants Biley and" Broyles. The record shows general replications by plaintiff thereto; but it is claimed this is insufficient, that these pleas should have been specially replied to. In this defendants are clearly in error. A general replication to- such a special plea puts in issue the. material matters thereof and this is all
Other points of error presented relate to the admission and rejection of eYidenee. First, it is urged that the admission in evidence on behalf of plaintiff of the record of the chancery cause of Logan v. Ballard, and of the law case of plaintiff against Houston and others, constituted error. The record of this case shows that the record of Logan v. Ballard was offered in evidence by and admitted on behalf of defendants, and, of course, they cannot be heard to complain thereof in this Court. And, so far as the record of the law case is concerned, it consisted simply of the declaration and the judgment in favor of plaintiff against Houston and others on the note given by them to plaintiff and to which the contract sued on in this case had been assigned as collateral. We do not see that this record was very material one way or the other. It did show the balance due plaintiff on the note sued on, and the balance for which plaintiff held the contract here invalid as collateral, but, of course, it'was not conclusive on the defendants to this suit, not parties to that suit. But, as there was amjp-le evidence outside of this record to show the balance due plaintiff, no error prejudicial to defendants resulted from its introduction in evidence.
It is next assigned as error that J. D. Logan, who assigned the contract sued on to plaintiff, was permitted to testify in its behalf. We can perceive of no valid legal objection to the competency of his evidence, and none is pointed out. His evidence was clearly -rendered competent by the provisions of section 3945, Code 1906.
Another ground of error urged is that the court below permitted counsel for plaintiff to ask the witness Logan whether he had been authorized by the people Avho signed the paper sued on to negotiate it for the purpose of obtaining a loan of money on it, and subsequently sustained objections by plaintiff’s counsel to the questions propounded to the witnesses Chewning and Johnson, by defendants’ counsel, whether they had authorized Logan to negotiate a loan on the paper sued on. Logan’s answer to the question propounded then was: “The paper on, its face shows for what it was executed, and I used it for that purpose, and got the money.” We see nothing in this answer
The next point of error is, that the court permitted plaintiff, over objection, to introduce in evidence, on the question of the financial responsibility of some of the defendants, the assessor’s property books for 1904. The record shows that the objections of defendants extended only to the use of these books as evidence of title, and not to their use as showing the assessment; and as the plaintiff in offering these books distinctly stated that they were offered for the sole purpose of showing the defendants assessed with certain property, and not as evidence of title, we do not think the defendants should now be heard to complain of their admission for the purposes intended.
But it is next urged upon us that, after having admitted said property books in evidence showing some of defendants assessed with certain property in 1904, the court sustained objections to sundry questions propounded defendants, Broyles, Riley, Dunn, Ellis and Ballard as to whether or not they were respectively owners in 1904, or in the fall of that year, of any property, or of the particular property assessed to them respectively. The record here again fails to show what the answer of these witnesses would have been; nor does the record show what was proposed to be proven by the witnesses in relation to their property, and it does not, therefore, clearly
Still another point of error urged is that the court below' sustained the several objections of plaintiff to questions propounded defendants 'Chewning, Smith, Dunn and Bradley, as to how their signatures Were obtained to the paper sued on, and as to what representations were made to. them at the time and by whom. Again, the record fails to show what the answers of these witnesses would have been, or what was proposed to be proven by the witnesses, and how, we ask again, can we say defendants were prejudiced by these rulings of the court? Besides, as is suggested in the brief of plaintiffs’ counsel, no plea of these defendants put in issue any question of fraud in the procurement of the contract, so as to render pertinent their evidence of fraudulent procurement, if that was its purpose, for it must be remembered .that the action here is on a sealed instrument, fraud in the procurement of which it seems could not have been pleaded at common law, and may not under the statute be given in evidence under the general issue. Columbia Acc. Ass'n. v. Rockey, 93 Va. 684 (25 S. E. 1009, 1010). Indeed the question has been stoutly contested in Virginia, at least, whether, since the statute, such matter could be given in evidence under the general issue in an- action on any promise, express or implied. Barton and Minor question such practice. 1 Barton’s Law Pract. 491; 4 Minor’s Inst. (3rd Ed.) 770, 798. But in actions on simple contracts this Court has followed the rule that fraud in. the procurement thereof may in actions thereon be given in evidence under the general issue. Dillon Beéb’s Son v. Eakle, 43 W. Va. 502, 512.
Another point made is that there was want of mutuality in the engagement — want of consideration for the alleged promise
Lastly, it is said on behalf of plaintiffs in error, that the judgment below against them should be set aside, because the same is also against T. A. McNeer, a non-resident, not served with process, and who, it is claimed, did not appear and submit himself to the jurisdiction of the court. While the record shows no service of process on T. A. McNeer, nor any special appearance by him;, nevertheless the orders of the court of July 9, 1906, October 4, 1906 and of January 11, 1907, show general appearances of defendants by counsel without exception, the latter order showing a general plea of non-assignment by them, and issue thereon, so that a very serious question is presented, whether in law ttho said McNeer is not bound by the appearance in his behalf, and judgment against him. But he is not here contesting the judgment against him, and certainly his co-defendants, the plaintiffs in error, have no right to complain thereof.
Another interesting question respecting the bill of exceptions has been presented by the defendant in error, plaintiff below. It is affirmed that this bill of exceptions was not sign
Wé, are therefore of opinion to affirm the judgment below.
Affirmed.