85 Va. 403 | Va. | 1888
delivered the opinion of the court.
1. The first question in the case is, whether the appellee, A. J. Farish, is entitled, as against the trustees of Thomas L. Farish, to the par value of the deposits in the Charlottesville National Bank, used by him in discharging two judgments in favor of the bank, aggregating $343.45 of principal, recovered on two negotiable notes executed by Thomas L. Farish, with A. J. Farish as endorser, or whether he is entitled to what the trustees claim to be “ the real value ” of the deposits. If the former view be the correct one, then the appellee was rightly allowed by the decree complained of the sum of $879.39 as of the first of October, 1887; whereas, if the latter view be correct, he is entitled only to $482.62 as of that date.
The trustees, the appellants here, contend that the latter view ought to have been adopted by the circuit court, because the sum
But the question is, what, as between the parties, is to be considered the amount paid by the surety in the present case ? The bank suspended and went into the hands of a receiver in October, 1875, and the dividends subsequently paid to its depositors amounted to only a little over sixty per cent, of their claims ; and if this could be taken as the proper basis upon which to ascertain the value of the deposits with which the judgments were discharged, or, in other words, the amount actually paid by the surety, a reversal of the decree would necessarily follow. But the facts of the case show that this is not the equitable or proper basis of calculation.
It appears that immediately after the suspension of the bank there was an agreement between Thomas L. and A._J. Farish, whereby the latter undertook to discharge the judgments, which were bearing twelve per cent, interest, and the former to repay the amount with interest at six per cent., and in pursuance of this agreement the judgments were discharged. It also appears that the debt, as now claimed by the appellee, was afterwards recognized by Thomas L. Farish, and in the trust deed of August 10, 1885, appointing the appellants trustees, the debt is referred to as “the debt originally due the Charlottesville National Bank by two notes, aggregating about $300, on which A. J. Farish was endorser, and which he discharged by setting off against the same an amount due him by the Charlottesville National Bank at the time of its failure, in .October, 1875.” The deed, it is true, further recites that “ how much will be due the
To- determine, then, the amount paid by the appellee and, therefore, the sum he is entitled to recover for his reimbursement or indemnity, the question must be determined, what, as between the parties, were the deposits worth when the judgments were discharged ? The appellants contend that they were worth just what the broken bank would pay, and that their value was then certain, though not ascertained, since that is sufficiently certain which can be made certain. In other words, they claim that their value is to be ascertained upon the basis of the dividends subsequently paid by the bank to its depositors. But this, as already said, is not the proper basis of calculation. Their value to the parties at the time was much greater.
It appears that when the bank suspended, the deposits of the appellee therein amounted to several hundred dollars in excess of the judgments, and that on the night of the day of its suspension the appellee contracted with the Charlottesville Milling and Manufacturing Company to transfer to it for flour the whole
The position of the appellants that the agreement is a mere nudum pactum, is clearly untenable. Their contention is, that inasmuch as the president of the bank required the appellee to pay the judgments out of his deposits, he had no option in the matter, hut was hound to pay them in that way, and hence the subsequent agreement with Thomas L. Narish, based upon his promise to pay with his deposits, was without a valuable consideration.
To this it is answered that the appellee, being a surety, could have filed a hill in equity to compel the creditor to enforce the
It is unnecessary, however, to decide that question in the present case, for there was at least an implied contract between the parties, which obliged the principal to reimburse the surety when the debt was paid. Kendrick v. Forney, supra.
These considerations also dispose of the contention of the appellants, that the agreement, if not a nudum pactum, is usurious. The deposits, when used, were worth par to the parties, as we have seen. They were certainly worth that much to the appellee, and they were worth not less to Thomas L. Farish, since they were used in paying a debt he owed, bearing twelve per cent, interest, and which constituted a lien on his land, and for which, by his agreement with the appellee, he was to pay thereafter only six per cent. The agreement, therefore, was not
Another point made by the appellants is, that Thomas L. Farish was not informed that the president of the hank had required the appellee to pay the judgments out of his deposits, and as knowledge of that fact was kept from him, the agreement is void, on the ground of fraud. A sufficient answer to this position is, that no such charge is made in the bill, and cánnot, therefore, he properly considered now; for “ nothing—and least of all fraud—can he the subject of trial, until it is put in issue.” Koger v. Kane’s Adm’r, 5 Leigh, 606. Nor will a mere general charge of fraud suffice. When relied upon, the hill must show, specifically and in detail, in what the fraud consists, and how it was effected, so that the defendant may have the opportunity of shaping his defence accordingly. And if not alleged, evidence upon the point, however strong a case it may show, is irrelevant, and will be suppressed as improperly taken, otherwise, “the pleadings, instead of being a shield to protect parties from surprise, would he a snare to entrap them.” Thompson v. Jackson, 3 Rand. 504; Knibb’s Ex’or v. Dixon’s Ex’or, 1 Id. 249; Gregory v. Peoples, 80 Va. 355; Welfley v. Shen. Iron, &c., Co., 83 Id. 768; Redd v. Dyer, Id. 331; Hickman’s Ex’or v. Trout, Id. 478; Voorhees v. Bonesteel, 16 Wall. 16, and cases cited.
The same rule, substantially, applies in all cases. As was said in the recent case of Kent’s Adm’r v. Kent’s Adm’r, 82 Va. 205: “If a party is entitled to recover at all, he must recover on the case stated in his bill. And although the plaintiff may make out a case which, under other circumstances, would entitle him to the aid of the court, yetj if it is not the case made by the bill, he cannot recover”; citing 2 Rob. (old) Pr. 288; Grigsby v. Weaver, 5 Leigh, 215; Mundy v. Vawter, 3 Gratt. 494. See, also, Potomac Manuf. Co. v. Evans, 84 Va. 717.
We will only add, upon this branch of the case, that whether the certificates of deposit which the appellee transferred, constituted, under the national banking act, a lawful set-off against the indebtedness of the transferee, the Charlottesville Milling and Manufacturing Company, to the bank, is not a material subject of inquiry in this case. It was not unlawful for the appellee to dispose of them, nor for the milling company to purchase them; and therefore the question is, what was the company willing to give for them and what did it give for them ? The object of the company in acquiring them was not a matter for the appellee to consider, nor does it appear from the record that it entered into the contract in any way whatever.
2. The next question relates to the Farmers and Merchants Bank debt. This bank suspended on the 3d of March, 1877, holding, at the time, a judgment against Thomas L. and A. J. Farish for upwards of $900. Upon this judgment the appellee afterwards paid in checks- on the bank and deposits in the bank the sum of $855.62. The balance due on the judgment was then compromised by C. D. Fishburne, trustee, with Thomas L. Farish, and the judgment was endorsed as follows:
“This judgment has been satisfied by Thomas L. Farish, with the exception of $427.81, which is for the benefit of A. J. Farish, with six per cent, interest from March 3, 1877, with no recourse to the plaintiffs or C. D. Fishburne, trustee."
In other words, the parties agreed that A. J. Farish should
We are therefore of opinion, without further discussion of the subject, to affirm the decree.
Decree aeeirmed.