93 Va. 349 | Va. | 1896
delivered the opinion of the court.
At the trial the defendant, Chapman, tendered his special plea in writing in the nature of a plea of equitable set-off, the substance of which is that the bond sued on was executed under a mistake, in payment for twenty-four acres of land in Roanoke county, ‘known as a part of the “ Chapman Mill Property,” while, in fact, at the date of the execution of the bond, Chapman had fully paid for the same. Upon this plea issue was joined, and, after all the evidence was submitted, the plaintiff demurred to the defendant’s evidence, and, both parties agreeing thereto, the jury was discharged from the further consideration of their verdict, and all matters in issue, both of law and fact, were referred to the court for its decision, and the court overruled the demurrer, and gave judgment for the defendant. To this judgment a writ of error was awarded by a judge of this court.
The evidence adduced by the defendant, Chapman, in support of his plea shows, at the most, that the transaction between him and the plaintiff’s testator, who was the defendant’s father-in-law, ran over a period of at least eight or ten years prior to the execution of the bond, and involved frequent payments of money by the one for the other; that the transactions between them were numerous and their accounts of them very imperfectly kept, so that any account that may be stated between the parties, especially in view of the death of one of them, must be purely conjectural. The witnesses testified more from impressions upon their minds than from any knowledge they had of the transactions between the parties. Indeed, one of the defendant’s witnesses, Ballard, frankly states that the impressions as to which he testifies
What was said by Moncure, P., in Foster v. Rison, 17 Gratt. 340, a case very similar to the one at bar, is peculiarily appropriate here, viz.: “ It is possible after all, that the account given of this matter in the examination of Wm. Rison is the true one, and that the credit of $975 given to J. W. F. in the settlement was in fact given by mistake. But whether the fact be so or not, I think it is not proved by that degree and amount of evidence which ought to be required under the circumstances, and that, in attempting to correct such supposed mistake, there would be danger of doing injustice to the estate of J. W. Foster.”
The effort of Chapman is to show that, in the final settlement with Jas. S. Persinger, February 14, 1883, he was improperly charged with a certain bond of one John A. Per-singer, which he (Chapman) had assigned to his trustees, and which he in fact had paid at the instance of Jas. S. Per-
The evidence in the case here is clear that there could be no true statement of the case established, and that any effort to reform the instrument claimed to have been executed in mutual mistake would in all probability, if not certainly, result in injustice to the estate of James S. Persinger, dec’d.
Equity will not extend its aid to one who has been guilty of culpable negligence. It requires that the party who asks relief on the ground of mutual mistake shall have exercised at least the degree of diligence which may be fairly expected from a reasonable person. And it has been repeatedly decided that equity, will not relieve against mistake when the party complaining had within his reach the means of ascertaining the true state of facts, and, without being induced thereto by the other party, neglected to avail himself of his opportunities of information. Beech on Mod. Eq. Jur,, pp. 53-4., Foster v. Rison, supra, Towner v. Lucas, 13 Gratt. 705,
In the ease last cited it was said: “ A court of equity is always reluctant to rescind unless the parties can be put back in statu quo. If this cannot be done, it will give such relief only where the clearest and strongest equity imperatively demands.”
There is nothing whatever in the evidence to take this case out of the operation of these well established rules, and we are therefore of opinion that the evidence is plainly insufficient to sustain the defendant’s special plea, and that it was error in the court below to overrule the demurrer to his evidence and give judgment for him, and the judgment will be reversed and annulled, and this court will enter such judgment as the court below should have entered, sustaining the plaintiff’s demurrer to defendants’ evidence, and giving judgment for the plaintiff for the amount of the debt sued on, with interest and costs.
Reversed.