82 Va. 135 | Va. | 1886
delivered the opinion of the court.
This is an action on the case to recover damages for the failure of the Roanoke National Bank to collect a note which had been deposited with it for collection by one A. L. Hambrick, the plaintiff below. At the trial, there was a verdict for the plaintiff for the amount of the note with proper interest; whereupon, the defendant applied for and obtained a writ of error from one of the judges of this court.
In his petition he assigns four errors, each of which will be considered in its order. The first of these is, that the circuit court erred in overruling the demurrer to the plaintiff’s declaration. The ground of demurrer chiefly relied on seems to be that the declaration fails to allege all the circumstances necessary to support the plaintiff’s action. The defendant insists that it is essential to the maintenance of the plaintiff’s case, .not only that the declaration should contain a full and clear statement of the injury of which he complained, but that such circumstance of time and place should be set out with such clearness and precision that the defendant may be able to plead a direct and unequivocal plea, and the jury may give a certain and distinct verdict. Conceding this to be true, we yet think there has been a substantial compliance with the rule in this case. The draftsman, it is said, has made the mis
The next assignment of error is, that the plaintiff, by his subsequent conduct, ratified the action of the cashier in taking the renewal note, and thereby deprived himself of all right of action against the bank. This defense is predicated upon the assumption, the mere circumstance, that the plaintiff permitted the cashier to hand him or his attorney the second note, although accompanied with the statement that the original note was lost, and that the second was retained for some time before it was returned, is legal and conclusive evidence of the fact that he assented to what had been done. We are not prepared, however, to give our assent to. this proposition. The
The next assignment of error is, that the court erred in refusing to give two instructions asked for by the defendant. But as no matter is set out in this bill of exceptions tending to show the pertinency of these instructions, and as no other bill of exceptions is referred to for the purpose of supplying this omission, and as it is not certified that the certificate contains all the evidence, it is plain that we cannot consider these instructions. Perkins’ v. Hawkins, supra. The rule being that when an exception is taken to the granting or refusing of instructions that the bill of exceptions should be so framed by the insertion of proper matter as to make the error,
The last assignment of error is, that the verdict is contrary to the evidence. But this assignment of error must also fail. For the certificate is of evidence, and not of the facts, and in such a case “the long and well established rule, too familiar to the profession to need the citation of adjudged cases,” as was said by Judge Richardson in Jones v. Rixey, 79 Va. 657, is, that the appellate court will only consider the evidence introduced by the party who prevailed in the lower court, and will not reverse the judgment unless, after rejecting all the parol evidence of the exceptor, and giving full force and credit to that of the adverse party, the decision still appears to be wrong. The verdict being supported by that evidence, must be sustained.
For these reasons the judgment complained of must be affirmed.
Judgment affirmed.