103 Va. 298 | Va. | 1904
delivered tbe opinion of tbe court.
This is a motion under tbe statute, by the plaintiff in error
On the 14th day of May, 1901, to which the notice was returnable, the defendant, H. O. Price, filed his plea of non est factum, whereupon the cause was continued as to him, and judgment rendered against the remaining six obligors, as to whom the order states there was no appearance. On the 5th day of October, 1901, the following nunc pro tunc order was entered: “This day came the parties by their attorneys, and the defendants, H. C. Price and J. H. Ferguson, administrator of B. N. Hatcher, deceased, having filed their statements of defenses duly sworn to, and their special pleas in abatement at the last term by leave of the court, and no order having been then entered in respect thereto,, it is agreed between the parties that the filing of said statements of defenses and said special pleas shall be entered of record nunc pro tunc, which is accordingly done.” It being contended by plaintiff in error that the judgment of May 14, 1901, is still in force against the administrator of B. N. Hatcher, deceased, it may be as well to state at this point that we are of opinion that this nunc pro tunc order entered by consent of parties, together with the subsequent action of the parties in the further progress of the cause, treating the judgment as set aside, estops them from now denying that to be its effect.
The defense relied upon by J. H. Ferguson, administrator of B. N. Hatcher, deceased, was that “his testator signed his name to the bonds in action at the time of the execution thereof, and
Upon the issues joined on the plea of non est factum filed by H. C. Price, and upon the defense set up by Hatcher’s administrator, the jury found in favor of the defendants in error. On motion of the plaintiff in error this verdict was properly set aside upon the ground of newly discovered evidence, and because the verdict was contrary to the law and the evidence. But apart from these considerations, this action of the court cannot be disturbed, because one of the grounds for setting the verdict aside was misdirection of the jury, and the instructions given are not in the record. This court cannot, in the absence of the instructions, assume that they were free from objection or pass at all upon that ground for setting the verdict aside.
At a special term of the Circuit Court, begun on Tuesday, September 30, 1902, the case was again tried upon the same defenses with the same result, a verdict in favor of the defendants in error. This judgment the lower court refused to set aside, and from that action a writ of error was awarded, bringing the case before this court for review.
Having, in what has been already said, disposed of several of the assignments of error, we come now to that which relates to the instructions given on the last trial.
The plaintiff in error objects to two instructions given for the defendant in error. The first is as follows: “The court in
The evidence of H. C. Price tended to show that he did not sign the bonds, and under his plea of non est factum, this instruction correctly propounded the law. We are of opinion, however, that, upon the whole evidence, the verdict of the jury was against the weight of evidence, but under the rule, treating the case here as upon a demurrer to the evidence, the judgment in favor of H. C. Price cannot be disturbed.
The second instruction is as follows: “The court further instructs the jury that any material alteration will vitiate the bonds, even though said alteration may not be prejudicial to the rights of said B. PT. Hatcher, deceased; and if they believe from the evidence that after the bonds were signed and delivered by Hatcher and others to William Gentry, and he accepted the same as their obligation, and that afterwards the name of PI. C. Price was added to said bonds without the knowledge or consent of said Hatcher, and that he did not subsequently ratify the same, such addition would be a material alteration, and in this action the jury must find for the defendants.”
This instruction enters upon a field of inquiry not called for by any evidence in the case. The consideration for these bonds was a tract of land sold by William Gentry to the obligors. The original transaction was with the first sis obligors, of whom Hatcher was one. After the sale to these obligors, Hatcher sold one-half of his interest in the purchase to H. O. Price. William Gentry, the obligee, says that a short while after the bonds were delivered to him, the obligors told him they wanted
At the time this suit was brought, three of the obligors were ■dead, and the foregoing is the entire evidence in the case touching the execution and delivery of these bonds
The instruction under consideration proceeds upon the theory that B. H. Hatcher had no knowledge of the fact that the name of H. O. Price was subscribed to the bonds as one of the obligors therein. It was error to give an instruction predicated on that view, because there is no evidence in the record tending to show that the name of Price had been placed upon the bonds without the knowledge and consent of Hatcher. The evidence tends to •show that the final completion and delivery of these bonds was ■when they were delivered the second and last time by the
For the foregoing reasons, the court is of opinion — the judgment complained of being joint — that the same should be reversed; and this court proceeding to enter such judgment as the lower court ought to have entered, it is ordered that the plaintiff take nothing by its notice as to the defendant, H. O. Price, and that he go thereof without day, and that the defendant, H.C. Price, recover of the plaintiff his costs in the Circuit Court about his suit in this behalf expended. And it will be further ordered that the verdict of the jury be set aside as to the defendant, John H. Ferguson, administrator of B. FT. Hatcher, deceased, and the case remanded for further proceedings against the personal representative of B. FT. Hatcher, deceased, to be had in accordance with the views expressed in this opinion.
Reversed,