112 Va. 859 | Va. | 1911
delivered the opinion of the court.
“This contract, made this 21st day of September, 1908, by and between E. E. Dorsey, party of the first part, and J’. H. Wilkinson, party of the second part, ■
“Whereas the said E. E. Dorsey and her late husband, Joseph M. Dorsey, are indebted to the said J. H. Wilkinson in the sum of $800, evidenced by the notes of the said Joseph M. Dorsey; and
“Whereas the said party of the first part is anxious to provide for the payment of said debt and is willing to make provision therefor;
.“Now, therefore, this contract witnesseth, that the said E. E. Dorsey agrees to sell to the said J. H. Wilkinson all that lot or parcel of land lying and being in the city of Roanoke, Va., and described as follows, to-wit:
“And in consideration of the above agreement the said J. H. Wilkinson agrees to pay to the said E. E. Dorsey the sum of $900 for said property.
“It is agreed between the parties that settlement and payment for the above property shall .be made when the property which was owned by the said Joseph M. Dorsey, to-wit, two lots of land, one lying on the west of the above described lot, and one on the east thereof, is sold by decree of court, and it is mutually agreed that so much of the proceeds of the sale of the said two lots belonging to the said Joseph M. Dorsey as is not required for the payment of the cost of the suit and other indebtedness of the said Joseph M. Dorsey shall be applied to the payment of the indebtedness of the said Joseph M. Dorsey and Ella E. Dorsey to J. H. Wilkinson; that the balance of the indebtedness to the said J. H. Wilkinson shall be deducted from the Nine Hundred Dollars ($900.00), the purchase price of the above described*861 lot, and that any balance which may be due by the said J. H. Wilkinson upon said lot shall be paid by the said J. H. Wilkinson to the said Ella E. Dorsey.
“Witness the following signatures and seals the day and year first above written.
“Ella E. Dorsey, (Seal.)
“J. H. Wilkinson, (Seal.)”
This contract was acknowledged before a notary public on the day of its date, and was admitted to record on the 11th day of October following.
Mrs. Ella E. Dorsey filed an answer, in which she says that she was the wife of Joseph M. Dorsey, who died in the year 1908, owning the two vacant lots in the bill mentioned, and leaving 'her and her three children with no other means of support than the property mentioned in said contract, which was conveyed to her as her separate estate in the year 1890; that shortly after the death of her husband, she being utterly ignorant of business and wholly unadvised as to her rights, the complainant told her that he held notes of her husband, upon which her name appeared as endorser, to an amount of about $800; that thereupon respondent informed the complainant that she had never endorsed said notes, and that if her name appeared upon them it was placed there without her knowledge or consent; that nevertheless the complainant insisted that respondent was liable on said notes, and said that they had been brought to him with her name on them by respondent’s husband, and that she, or at least the property conveyed to her, was liable for their payment; that complainant then proposed that respondent should go with him to the office of the Honorable C. B. Moomaw, whom he represented to respondent as being a good lawyer and one who would rightly advise her as to her liabilities in the premises; that wishing to do what was right, she complied with this suggestion, and when she reached the office of Mr. Moomaw she was there again told
Wilkinson answered this- cross-bill, denying its allegations and giving his version of the transactions which led
It appears from the proof that Joseph M. Dorsey was a contract plasterer in the city of Roanoke; that Wilkinson was a merchant dealing in building material; and that in the course of business Dorsey became indebted to him. In the month of January, 1908, Dorsey owed Wilkinson about $800. He was unable to pay the whole of the debt at one time, and proposed to close the account by notes signed by himself and endorsed by his wife, the defendant -in this suit, and accordingly eight notes for $100 each were prepared, payable consecutively at from one to eight years. Dorsey executed these notes on his part, and was about to endorse them on behalf of his wife, when Wilkinson said to him: “I thought that you would have your wife endorse these notes ?” to which Dorsey replied: “Well, she is. This is the way we do our business. If you doubt my word, call up Mrs. Dorsey.” This Wilkinson declined to do, whereupon Dorsey went to the telephone and called up his wife and spoke to her about the matter, and asked her if it would be all right for him to endorse her name. Wilkinson did not hear Mrs. Dorsey’s reply, but he knew the number of the telephone of Dorsey’s house and knew that Dorsey called the right number. When the conversation over the telephone was finished, Dorsey remarked, “I told you it was all right,” and proceeded to write his wife’s name on the back of the notes. On the 1st of May, 1908, Dorsey died without having paid any of the eight notes, none of them at the time being due. Some time after the death of Dorsey, his widow, the defendant in this suit, went to Wilkin
This recital of facts is taken in a large degree from the petition for appeal, and is fully sustained by the preponderance of the testimony. There is, indeed, but little contradiction between the testimony of Mrs. Dorsey and that of the witnesses for Wilkinson. The only material difference is that Mrs. Dorsey asserts that she never authorized her husband to endorse her name upon the notes; that she signed the contract in the bill mentioned believing that she was bound to pay those notes; that she was not advised that she was not liable upon them; and that she had never seen the notes until they were shown to her at the time she gave her testimony.
In her testimony, in answer to questions, she said:
“Q. You placed the property you owned as being worth about $800 at that time, didn’t you ? A. $900 was what Mr. Wilkinson said.
Q. I understand, but you placed the full value' of the property at $1,200 and you said the two lots were worth $200 apiece? A. Yes, sir.
Q. And it was then that Mr. Wilkinson said he would give you $900? A. Yes, sir.
Q. You also remember, don’t you, we were making a calculation as to the amount of your debts? A. Yes, sir.
Q. That I stated to you if you sold your property that way you would not have much left? A. Yes, sir, after you brought in those notes of Mr. Dorsey.
Q. After I calculated what you owed Mr. Wilkinson and the other debts which you named, and got what you valued the property at, I told you that if you would sell the property that way you would not have much left? A. Yes, you did, but you see I did not know anything about those notes when I was trying to sell Mr. Wilkinson the property.
*867 Q. You knew it before you came to my office? A. I do not remember that I knew anything about the notes until I came to the office. I knew Joe owed Mr. Wilkinson, but I did not know anything about the notes until I came to your office.
Q. Didn’t you say Mr. Wilkinson spoke to you about the notes at your house when you called him down there? A. He did not say anything to me about the notes, but I knew Joe owed Mr. Wilkinson the money, but there was nothing said to me about the notes.
Q. Now, who spoke first about the debt at your house, you or Mr. Wilkinson? A. I must have spoken first about it.
Q. You spoke about the debt coming off the price of the property? A. I thought, you know, that it would leave me — Yes, I remember I spoke about that coming off the property. But, you see, I thought after Mr. Wilkinson got his money why there would be something coming to me. When I asked him about selling him the property, I did not know anything about the notes. I knew Joe owed this money and I thought if I could sell him the property then there would be something coming to me.
Q. And you offered to sell him the property and take Mr. Wilkinson’s debt out of it, and then pay you the balance? A. Yes. ‘After I sold him all this property. Then he said to me after I proposed selling him all the property, ‘Well, you cannot sell Mr. Dorsey’s property. That will have to go through court.’ ”
We think it appears, not only from the evidence of other witnesses, but from the testimony of Mrs. Dorsey herself, that she knew of this indebtedness on the part of her husband ; that she intended to pay it out of the proceeds of the sale of her property; that she herself made the first proposal to that effect; and that her subsequent attitude is due to two causes — first, the fact that she found her husband’s indebtedness other than that to Mr. Wilkinson would
There is nothing to indicate that Mrs. Dorsey is ignorant or incompetent. She says that she had frequently endorsed her husband’s notes before, but carefully discriminates as to the character of the notes which it was her custom to endorse; and we think the reading of the exhibit filed with the bill of itself plainly sets forth and carefully protects her rights, and shows knowledge upon her part of every essential condition. That she executed that instrument is not denied, and she was bound by it unless she maintains her position that it was obtained from her by fraudulent misrepresentation or by mutual mistake.
In Solenberger v. Strickler, 110 Va. 273, 65 S. E. 566, it is said that equity will not relieve against a mistake unless it be established by the clearest and most satisfactory evidence. Bibb v. Am. Coal & Iron Co., 109 Va. 261, 64 S. E. 32.
It is not enough to show a possibility or even a probability of mistake. As was said by Lewis, P., in Shenandoah Val. R. Co. v. Dunlop, 86 Va. 346, 10 S. E. 239: “The authorities
The evidence in this case not only fails to establish fraud or mistake by clear and satisfactory proof, but the preponderance of the proof maintains the fairness and integrity of the transaction.
We are of opinion that the decree of the corporation court should be reversed, and the cause remanded for further proceedings to be had not in conflict with this opinion.
Reversed.