6 W. Va. 110 | W. Va. | 1873
The points assigned as error in this case arose in the trial of the issue upon the defendant Brown’s plea of non estfactvm. The Appellant, insisted that the Court erred.
“ 1st. In permitting the witness Beard to testify as stated in Plaintiff’s first bill of exceptions, and in permitting the witness Brown to testify under the same circumstances, as stated in Plaintiff’s second bill of exceptions.
“ 3d. In overruling the Plaintiffs objection to the question by Defendant set out in Plaintiffs third bill of exceptions.
“ 4th. In denying tbe Plaintiffs motion for a new trial.”
It appears from tbe Becord that the writing obligatory, sued on by Newlin, was signed by tbe said Beard and Brown; and upon trial of the issue arising' on tbe plea of non est factum, Brown introduced not only Beard, bis co-signer and co-defendant, but also himself, to prove tbat he had signed and delivered the instrument sued on to bis co-defendant Beard, on condition tbat certain other persons should sign it.
Tbe Plaintiff objected to tbe introduction of any evidence respecting conditions on which Brown signed, or executed tbe instrument, unless Brown proposed to connect it with evidence, showing tbat tbe Plaintiff was apprised of such conditions before delivery to him of tbe instrument as tbe deed of the parties who had signed it; or “ it were first decided, tbat thé said instrument indicated on its face tbat it was not. intended to be a complete contract at tbe time of its final delivery.” The defendant, Brown, proposed to show either tbat Beard was acting as tbe duly authorized agent of Newlin in procuring the signature, or tbat Newlin was' in possession of such facts at tbe time of the delivery, by Beard, of tbe said instrument to him, as would put him upon enquiry as to tbe terms upon which Brown bad signed it. Tbe first bill of exceptions, from which I quote verbatim> states that, “ Plaintiff then further objected upon' the ground that if tbe Defendant relied upon tbe evidence thus proposed to be introduced by him, such evidence
It is the established rule, that the bidden of proof of the formal execution of a deed, when put in issue under the plea o£'non est factum, rests upon the party claiming under it; and that proof must show that the deed was signed, sealed and delivered by the obligor as his deed. Pursuant to said rule, the Plaintiff in this case, to sustain the issue on his part, offered to introduce evidence showing the instrument declared on to be the deed of the Defendants, whereupon the Defendants admitted the signatures thereto to be their proper signatures. The Plaintiff then read the instrument to the jury, in evidence. The Plaintiff having, therefore, complied with the rule on his part, by introducing the writing obligatory, and showing, by the 'admission of the Defendants, that it was signed and sealed by the Defendants, and the possession of the instrument by the obligee, being in the absence of opposing circumstances, prima facie evidence of its proper delivery to him, it was then incumbent on the defendant Brown in order to sustain the issue on his part, to show some special matter in avoidance of the deed. That was the object of Brown when he offered to introduce Beard and himself as witnesses. If he could show that he had signed, sealed and delivered the instrument upon condition, either to the obligee or to the obligee’s previously constituted agent, and that condition had not been complied with, certainly, the authorities arc conclusive, that he should not be held liable as an obligor, and rightly so, because under no intendment could it be his deed until the conditions were fulfilled.
Now if it is true that, “ The delivery of a deed is complete, when the grantor or obligor" has parted with his dominion over it, with intent that it shall pass to the grantee, or obligee; provided the latter assents to it, either by himself or his agent,” “and that the delivery may be complete, without the presence of the other party, or any knowledge of the fact by him, at the time, if it be made
It is true, in general, that the character of agent for one party to a contract, and that of principal upon the other part, are incompatible.
The Court, in overruling the Plaintiff’s motion “ to exclude from the jury all evidence relating to the condition or agreement on which the defendant Brown signed and delivered the instrument in suit to his co-defendant Beard,” stated, in the hearing of the jury, “that in consideration of the evidence that had gone before, in reference to the Plaintiff’s requesting the Defendant Beard to procure the signatures of the obligors in the Jarrettboud, to the writing sued on, and when he returned with but one of the signatures it was sufficient to put the Plaintiff upon enquiry before accepting the delivery of the same from Beard; therefore, the Plaintiff’s motion to exclude said evidence from the jury must be overruled by the Court.” The Plaintiff excepted to such statements being made in the hearing of the jury by the Court. The question now arises, whether the Court erred in making such statements in the hearing of the jury, and if so, should the judgment be reversed for that error ?
In the case of McDowell’s Ex’or. vs. Crawford, 11 Grat. 402, which was decided by a divided Court, Judge Moncure in giving the opinion of the Court, says: “ It is a fundamental maxim, that the Court responds to questions of law, and the jury to questions of fact. The Court must decide as to the admissibility of evidence, that being a question of law; but not as to its weight after it is admitted, that being a question of fact. The cases in this Court in affirmance of this position are too numerous to be cited. Most of them are collected
In admitting or excluding evidence, I concede the authorities guard closely the line of demarkation between law and fact, and watch with jealous eye the encroachment of the Court on the province of a jury; but, whilst they do not sanction opinions of the Court as to the “weight, effect, or sufficiency of evidence77 on matters material, or such as would influence a jury to the prejudice of a party, yet, the doctrine is not so rigid in its application to opinions, or statements of the Court on points immaterial, or such as cannot operate injury to a party. In such case it is not error for which an Appellate Court'will reverse a judgment. (Pitman vs. Breckenridge & Crawford, 3 Grat. 127; Colvin vs. Menefec, 11 Grat. 87; Cricket et al. vs. The State of Ohio, 18 Ohio S. R. 9).
In the case before us, the statements of the Court, although, perhaps, improper to have been made within the hearing of the jury, yet, in view of the case as taken in this opinion, holding the law as herein stated, applied to the facts of the case, could not have prejudiced the Plaintiff, and therefore there is not such error as would justify an Appellate Court in reversing the judgment.
The 4th and last assignment of error is, “in denying the Plaintiff’s motion for a new trial,77
In this case, as in that of Bennett vs. Hardaway, Administrator of Jones, 6 Munford, 125, the bill of excep
The judgment should be affirmed with costs and dam-