Palmer v. Showalter

Nov 20, 1919

Reporters:: , ,
Before:: Sims

SIMS, J.,

after making the foregoing statement, delivered the following opinion of the court.

The issue in this case involves purely a question of fact, namely:

1. Was the sale of his farm by Showalter, mentioned in¡ the statement preceding this opinion, a boma fide sale *316to George A. Brown; or was it merely a pretended sale to him, being in truth a sale from Showalter to Floyd E. Brown, cloaked and attempted to be disguised as a sale to George A. Brown with the purpose and intent on the part of Showalter to escape the fulfillment of his obligation to the plaintiff as a real estate ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍agent to pay the latter the agreed $500 commissions on the sale to Floyd E. Brown or other purchaser procured by the plaintiff?

[1] In our consideration of this question, we recognize that the defendant in error, Showalter, is entitled to the presumption of fair dealing and that the proof in the case must be “clearly and satisfactorily” sufficient to overturn that presumption in order to entitle the plaintiff to a recovery against him. Mere suspicious circumstances would not be enough to warrant such a recovery in such a case. Va. F. & M. Ins. Co. v. Hogue, 105 Va. 361, 54 S. E. 8.

[2-4] Due weight must also be given to the action of the learned judge of the trial court in setting aside the Verdict of the jury in favor, of the plaintiff, as set forth in the statement of the case above. It was the duty of the trial judge to set the verdict aside if it was “plainly against the evidence or without evidence to sustain it,” as the rule is stated in Noell v. Noell, 93 Va. 439, 25 S. E. 242. Or, as stated in Muse v. Stern, 82 Va. 33, 35, (3 Am. St. Rep. 77). this court will sustain the verdict, although it be set aside by the trial judge, “unless it can ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍perceive that there has been a plain deviation from right and justice and that the jury has found a verdict against the law, or against evidence, or without evidence.

There is no controversy over the law of the case before us. The question presented to us for decision by the record, therefore, is the following:

2. Was the verdict of the jury in favor of the plaintiff *317against Showalter, for the $500 damages, as set forth in the statement above, plainly against the evidence or without evidence to sustain it?

[5] The crucial question in the case is whether at the time of the verbal communication between Showalter and George A. Brown concerning the sale of the farm by the former to the latter there was in truth a bona ‘fide contract of sale from the former to the latter or only a talk which did not ripen into a contract until after George A. Brown had ascertained that Floyd E. Brown would still pay $15,000 for the farm and after Showalter also knew this and that Floyd E. Brown, the plaintiff’s customer, was in truth the purchaser of the property and was to be made use of in the transaction. If this was true, then, in view ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the unsuccessful effort of both George A. Brown and Floyd E. Brown by their testimony to create on the minds of the jury a different impression, and in view of the preceding abortive effort of Showalter and Floyd E. Brown to’ put through a pretended ‘sale in very much the same way with the intermediation of Newt. Brown playing a veiy similar part as that charged by the plaintiff upon George A. Brown, showing the very recent existence of the animus of Showalter in the premises, there was ample evidence before the jury furnished by the testimony of George A. Brown himself and of Floyd E. Brown, (which is indicated in the statement preceding this opinion) to sustain the jury in concluding that the sale to George A. Brown was not a bona fide sale, but was merely a pretended, sale and that the sale was in truth one from Showalter to Floyd E. Brown, as set forth in the question in this opinion first above stated. And to sustain the jury in finding that there was no contract of sale between Showalter and George A. Brown until both of them knew that they could make use of the plain*318tiff’s customer as aforesaid, the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍testimony of George A. Brown and his manner of testifying was amply sufficient.

[6, 7] The fact that , the jury brought in no verdict against George A. Brown does not at all indicate to our minds that they acquitted him of all complicity in the pretended sale aforesaid, for, as is well settled, and is, of course, well understood, the law imposes no duty of contribution between joint tort feasors to the payment of damages occasioned by their joint tort. The right of recovery of a plaintiff in such case being several as well as joint, nothing is more common than for juries to fail to bring in a verdict against all the tort feasors sued, and that without any intention of wholly acquitting any of them of misconduct. Juries are often manifestly influenced to award the damages against that defendant found most at fault in, or who has gained most by the ! tort in question; and in other cases it is not apparent j what may have influenced juries in awarding damages jj against one and none against another tort feasor sued.! It would be a most unsatisfactory foundation, upon which to rest the decision of the case before us to base it ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on the assumption that failure of the jury to award any damages against George A. Brown evidences that they acquitted him of all complicity in the deceit aforesaid of Showalter, and hence draw the conclusion that Showalter was not guilty of such deceit on the ground that he could not have accomplished it without the complicity of George A. Brown. That would be but reasoning in a circle and with the major premise predicated on an assumption which may not have been a fact.

For the reasons stated, we are of opinion to reverse the case and enter judgment for. the plaintiff.

Reversed.