Repass v. Richmond

• Decision Date: 27 June 1901
• Citation: 99 Va. 508,39 S.E. 160
• Court: Virginia Supreme Court
• Parties: REPASS. v. RICHMOND et al.

39 S.E. 160

99 Va. 508

REPASS.

v.RICHMOND et al.

Supreme Court of Appeals of Virginia.

June 27, 1901.

ACTION—BONDS—LIABILITY OF SURETY—ESTOPPEL—NON EST FACTUM—EVIDENCE—ADMISSIBILITY—RES INTER ALIOS ACTA—PRESUMPTIONS—WITNESSES—CORROBORATION — SELF-SERVING DECLARATIONS—ISSUES OUT OF CHANCERY.

1. A county treasurer gave notice to a deputy and the sureties of the latter that the treasurer would move for judgment for the sum in which the deputy was in default, and the deputy filed a bill to restrain such action, admitting the execution of the bond, and the treasurer filed a cross bill, the sureties being parties to both bills. A consent order was afterwards entered, appointing a commissioner to take an accounting to determine the balance due the treasurer. The sureties had not appeared or answered at the time of the accounting, but testified at the same. Held, that the conduct of the sureties, not being prejudicial to the treasurer, would not estop them from pleading non est factum as to the bond.

2. Evidence is not admissible, in an action on a bond of a deputy treasurer in which the sureties plead non est factum, as to the character of the bonds given by other deputies and other sureties, and the manner of the execution thereof.

3. Where the surety on a bond testifies that it was in blank when signed by him, and the plaintiff shows former contrary statements by the surety, the latter cannot show, for the purpose of corroboration, that he stated, prior to the institution of the suit, that the bond was in blank when he signed it.

4. The admission of improper evidence on the trial of an issue out of chancery is ground for the reversal of a decree based entirely on the verdict returned by the jury, where the evidence was conflicting, and determination of the issue was based on the credibility of the witnesses, and the court thought he should follow the verdict of the jury thereon.

Appeal from circuit court, Wythe county.

Suit on a bond by J. W. Repass against W. A. Richmond and others. From a decree in favor of defendants, plaintiff appeals. Re-

versed.

C. B. Thomas, J. H. Fulton, and A. A. Campbell, for appellant.

W. S. Poage, Walker & Caldwell, Robert Crockett, and J. L. Cleaves, for appellees.

BUCHANAN, J. J. W. Repass, who was treasurer of Wythe county from July 1, 1883, to June 30, 1895, gave two notices to E. S. Repass, one of his deputies, and the sureties on the bond of the latter, that he would, at the February term, 1897, of the circuit court for that county, move for judgments for the amount his deputy was in default, together with interest and damage thereon. Upon the calling of the notices, the deputy presented a bill to the court praying for an injunction to restrain the plaintiff from a further prosecution of his motions at law, making the sureties on both his bonds, as well as the treasurer, parties defendant. The bill admitted the execution of the bonds, but alleged that the accounts between him and the treasurer were in such a complicated condition that a settlement thereof was necessary by a commissioner of the court, when it would be found that neither he nor his sureties owed the treasurer anything. The injunction was granted as prayed for.

At the April rules, 1897, the appellant answered the bill and at the May rules filed his cross bill, making E. S. Repass and his sureties on both bonds parties defendant.

On June 5th following, a consent order was entered, directing a special commissioner of the court to take an account between the treasurer and his deputy, and report what balance, if any, was due from the deputy. The commissioner took the account, and reported it to the court in August, 1898, by which it appeared that there was a large balance due from the deputy and his sureties on his bond dated February 25, 1890. At the following (September) term of the court the sureties on that bond tendered a plea of non est factum, which the court rejected upon the ground that the filing of the pleas had been unduly delayed. At the next (March) term of the court they filed answers to both the original and cross bills, in which they denied, among other things, that they had executed the bond dated February 25, 1890. Depositions were taken by both parties, and at the February term, 1900, of the court, an issue out of chancery was directed upon motion of the said sureties, over the appellant's objection, to determine whether the bond in question was their true writing obligatory. Upon the trial of that issue the jury found that the said writing was not the bond of the sureties. The motion of the appellant to set aside the verdict was overruled, an order was entered approving it, and directing it to be certified to the chan cery side of the court, in which a decree was entered dismissing the original and cross bills as to the parties in whose favor the verdict was found. From that decree this appeal was taken.

The first error assigned is the action of the court in awarding the issue out of chancery.

It is not claimed that under ordinary circumstances it was not a proper case, in the discretion of the trial court, for an issue out of chancery; but it is insisted that the delay of the appellees in denying the execution of the bond, their consent to the order for an account, their appearance before the commissioner as witnesses, and the testimony given by them estopped them from relying upon the defense of non est factum.

It is settled law that whenever an act is done or a statement is made by a party, which cannot be contradicted without fraud on his part and injury to the other party whose conduct has been influenced by the act or admission, the character of estoppel will attach to what would otherwise be a mere matter of evidence. But an estoppel by conduct does not exist where the party setting it up has not relied upon the conduct of the other party, and been induced to do something which he otherwise would not have done. Bargamin v. Clarke, 20 Grat. 552; Dair v. U. S., 16 Wall. 1, 4, 21 L. Ed. 491.

As the principle of estoppel invoked by appellant to preclude the appellees' sureties from setting up the defense of non est factum to the bond of their principal rests upon the ground of fraud, and as the effect might be to shut out the truth, it is never applied, as was said by Judge Joynes in Bargamin v. Clarke, supra, in any of its branches, upon an uncertain and speculative state of facts.

Both in the original and cross bills to which the appellees were parties defendant it was alleged that they had executed the bond, the validity of which the issue out of chancery was directed to try. At the time the consent decree for an account was entered, they had neither pleaded to nor answered these bills, and did not offer to do so until after the account ordered had been taken and reported to the court. The deputy treasurer claimed in his bill that upon a proper settlement it would appear that he was not indebted to the appellant in any amount, and prayed for an account. The treasurer insisted in his answer and cross bill that there was a large balance due from his deputy, and that there was no necessity for an account, but asked, if the court was of opinion that an account was necessary, that it should be taken as speedily as possible. Before the next term of the court, and within less than 30 days after the cross bill was filed, the appellant gave notice that he would move the judge in vacation to enter an order for an account. The other parties accepted service of the notice, and con-sented to the order for an account, which directed a special commissioner of the court "to take, state, and report an account of all the tax tickets which were placed by J. W. Repass, late treasurer of Wythe county, in the hands of Emory S. Repass, his deputy, for collection, and what payments he has made to J. W. Repass on account of the tickets which he has collected, and what other credits said Emory S. Repass, as said deputy, is entitled to credit for in his account with said J. W. Repass for claims settled by him, and turned over to said J. W. Repass, commissions, delinquent list, etc., and what balance, if any, there is due from said Emory S. Repass, as said deputy treasurer of Wythe county, on account of tax tickets taken as aforesaid for collection."

The commissioner was also directed to report any other matter which he might deem pertinent, or as to which any party might require him to report.

As before stated, the order for the account was prayed for by the deputy treasurer in his bill, and made upon the motion of the appellant. They had the right to the account, and the court ought to, and no doubt would, have made the order, even if the appellees had not consented to it. Indeed, they had no right to object, as the parties asking it were entitled to it as between...