Abrahams v. *(Absent

Citation18 W.Va. 274
PartiesAbrahams v. Swann.*(Absent, Patton, Judge.)
Decision Date20 August 1881
CourtSupreme Court of West Virginia

1. When a case is tried by a court in lieu of a jury, it is not an error, for which the appellate court will reverse, to hear illegal testimony, if there be enough legal testimony to justify the judgment.

2. In such a case the party excepting must be regarded as a demurrant to the evidence, and the judgment of the court below will not be reversed, unless it is plainly erroneous.

3. The court ought not to compel the production of a document by the plain-tiff, which is a part only of his evidence and is not material evidence for the defence.

4. To remove the bar of the statute of limitations by a new promise in writing, such promise must be determinate and unequivocal; and if the new promise is to be raised by implication of law from an acknowledgment, there must be an unqualified acknowledgment of a subsisting debt, which the party is liable and willing to pay.

5. If such acknowledgment or promise is contained in a letter of the defend-ant to the plaintiff, it is not necessary, that the amount of the debt or that its date should be specified in the letter, but the particular debt, to which the letter refers, may be identified by extrinsic evidence written or parol; and if so identified clearly, and the promise is unequivocal, or the acknowledgment is of a subsisting debt, for which the defendant is liable and willing to pay, the bar of the statute of limitations is thereby removed.

Writ of error and supersedeas to a judgment of the circuit court of the county of Kanawha, rendered on the 22d day of December, 1877, in an action of assumpsit in said court then pending, wherein Jesse A. Abrahams was plaintiff and John S. Swann was defendant, allowed upon the petition of said Swann.

Hon. Joseph Smith, judge of the seventh judicial circuit rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case:

On June 2, 1852, the plaintiff, Jesse Abrahams, became the surety with Thomas L. Hobson of the defendant, John S. Swann, as curator of Meliora G. Swann. A chancery suit was instituted against John S. Swann, such curator, and his said sureties in his official bond; and on April 25, 1860, the circuit court of Powhatan county, Virginia, where the parties then resided, in a suit brought to require the settlement of his, John S. Swann's, accounts as such curator, the court decreed, that he and his sureties do pay to the receiver of the court the balance found due from said Swann as such curator, to wit, $825.76 with interest thereon from April 25, 1860, till paid.

On this decree execution was issued, and the payment of one half of said amount was enforced out of Jesse A. Abrahams. This half so paid by him to the sheriff amounted when paid to $456.31; or rather this moiety of the debt was satisfied by the payment of $400.00 on December 13, 1860, and $56.31 on March 4, 1861, on an award of execution on a forfeited forthcoming bond. In January, 1862, John S. Swann repaid the plaintiff on this debt $46.60, and has never made any other payment on it. There were no other business transactions between the plaintiff and defendant, except that John S. Swann held the plaintiff's note for $11.00, and owed the plaintiff $18.75 for professional services as a lawyer. The plaintiff at one time proposed by letter, that he would surrender his claim for professional services, if Swann would send him this $ 11.00 note; but the defendant never replied to this note. Between January, 1866, and January, 1875, the plaintiff wrote to the defendant numerous letters, to which he replied. Eight of these letters of defendant to plaintiff in reply were produced, but only six of them were copied in the record. The contents of these letters will be sufficiently stated in the opinion. They were all written prior to 1870 except two. In one of them, dated September 9, 1871, the plaintiff says referring, as on careful examination I have concluded the other evidence shows, to this surety debt: "I have acknowledged the debt to you in my letters again and again. Therefore it stands as good as if you had my bond."

In Oct. 1875 the plaintiff Jesse A. Abrahams brought his action of assumpsit in the circuit court of Kanawha county against John S. Swann, to recover this money paid for him as his security. The defendant pleaded non assumpsit, on which issue was joined, and afterwards the statute of limitations, to which the plaintiff replied, that on the 9th day of Sept., 1871, the defendant by a promise in writing signed by him promised the plaintiff to pay him the moneys claimed, and the action was brought in five years thereafter, issue was joined on this replication. The parties waived a jury, and the case was submitted to the court in lieu of a jury for its decision. The facts above stated were proven by evidence, which according to the principles stated in the opinion was legal evidence. The court on Dec. 22, 1877, rendered a judgment for the plaintiff for $921.67 with interest thereon from Dec. 22, 1877, and costs.

The letter of Sept. 9, 1871, and another written by the defendant to the plaintiff were in the hands of the plaintiff's counsel; and after the plea of non assumpsit was filed, but before the plea of the statute of limitations was filed, the defendant moved the court to compel the production of these two last letters sustaining his motion by an affidavit, that they were material and proper to be produced before the court. This motion was resisted by the plaintiff's counsel, who swore, that these letters were not material to the defence of the suit. The court refused to require their production; and the defendant excepted. These letters were afterwards produced and read at the trial of the case. The plaintiff's depositions were excepted to, as the exception on its face says, because there were no affidavits of the non-residence of the affiants, and because they were taken a second time without leave of the court. But the record does not show the existence of the facts, on which these exceptions appear to be based. They were also excepted to, because after they had been endorsed "filed," they were withdrawn without leave of the court and taken again. The record does not show this exception to be based on fact, nothing of the sort appearing. These depositions were also excepted to, because they attempt to identify the debt acknowledged in writing by the defendant by extrinsic and parol evidence. The reading of the six letters, written more than five years before the suit was brought, was objected to by the defendant. These letters were however allowed to be read. They were intended to identify the debt acknowledged by the letter of Sept. 9, 187 J, written less than five years before the suit was brought. All of them were permitted to be read by the court. The plaintiff also objected to the reading of the record of the chancery cases, whereby the plaintiff as surety of the defendant was decreed to pay the money, which he did pay, and also to the receipts of the sheriff showing such payment,

A writ of error and supersedeas was granted to the judgment of the circuit court of Kanawha by the judge of the eighth judicial circuit on the petition of the defendant.

W. A. Quarrier for appellant cited the following authori- ties: 17 Wend. 389; Code 585, 616 § 8; 1 Pet. 351; 6 Pet. 86; 8 Cranch 122; 8 Gratt. 110; 13 Gratt. 329; 8 Leigh 45; L. R. 10 Q. B. 500; S. C. 1 L. and Eq. Rep. 234.

Miller-& Gallaher and Smith & Knight cited the following authorities for appelle: Code ch. 130 § 43; Acts 1872-3 ch. 81; 12 Gratt, 615; 13 Gratt. 427; 17 Gratt. 445; 21 Gratt. 158; 11 W. Va. 535; Bart. L. Pr. 82; 8 Gratt. 117; Code ch. 104 § 8; Greenl. Ev. § 441; 4 Pick. 110; 1 Rob. Pr. 534, 535, 540, 548; 8 Gratt. 133.

Green, Judge, announced the opinion of the Court.

The first error assigned by the plaintiff in error is, that the circuit court would not compel the production by the plaintiff of two letters written by the defendant and relied on by the plaintiff as acknowledgements in writing sufficient to take his case out of the statute of limitations. The motion of the defendant to require the production by the plaintiff of these letters was made before the defendant had put in the plea of the statute of limitations, and was obviously made to obtain a view of these letters, that he might determine, whether he would plead the statute of limitations. These letters were entirely immaterial to the trial of the only issue then in the case, that is, the issue on the plea of non assumpsit; nor does the affidavit allege, that they were material to the trial of this issue. Clearly the court did right in refusing to require the plaintiff to produce this evidence. Even had they been material evidence for the plaintiff in the issue then joined, the court could not properly have for this reason required their production. To justify such requirement, they must have been material evidence for the defendant; for the rule is, that the defendant has a right to enforce the production of such documents by the plaintiff, as relate to his defence, and does not extend to the enforcement of the production of documents by means of which the plaintiff's case is to be established. See Wigram on the Law of Discovery p. 90, 13 vol. of law library. The case of Raymond v. Howland 17 Wend. 389 referred to as an authority on this point by the plaintiff in error in his petition has no bearing on the question. It simply decides, that when the letters of the correspondent of the defendant are relied upon at the trial as evidence in support of the action, the defendant is entitled to read his answers to such letters, so that the jury may pass upon the whole of the correspondence. In this case the defendant did not at the trial produce or offer to produce the plaintiff's letters, to which these letters of the defendant were replies, and if the whole...

To continue reading

Request your trial
38 cases
  • State ex rel. Hoosier Engineering Co. v. Thornton, 10431
    • United States
    • Supreme Court of West Virginia
    • June 3, 1952
    ...court will reverse, to hear illegal testimony, if there be enough legal testimony to justify the judgment.' Point 1, Syllabus, Abrahams v. Swann, 18 W.Va. 274. Rohrbaugh v. Rohrbaugh, W.Va. 68 S.E.2d 361; State v. Thacker Coal & Coke Co., 49 W.Va. 140, 38 S.E. 539; State v. Denoon, 34 W.Va.......
  • Weiss v. Soto, 10870
    • United States
    • Supreme Court of West Virginia
    • June 11, 1957
    ...court will reverse, to hear illegal testimony, if there be enough legal testimony to justify the judgment.' Point 1, syllabus, Abrahams v. Swann, 18 W.Va. 274. 3. Extrinsic evidence of any facts known to the testator which may reasonably be supposed to have influenced him in the disposition......
  • Chesapeake & O. Ry. Co v. Deepwater Ry. Co
    • United States
    • Supreme Court of West Virginia
    • April 25, 1905
    ......Harrison v. Bank, 6 W. Va. 1; Nutter v. Sydenstricker, 11 W. Va. 535; State v. Sea-bright, 15 W. Va. 590; Abrahams v. Swann, 18 W. Va. 274, 41 Am. Rep. 692; State v. Miller, 26 W. Va. 106; Laidley v. Smith, 32 W. Va. 387, 9 S. E. 209, 25 Am. St. Rep. 825; ......
  • State ex rel. Pingley v. Coiner, 13127
    • United States
    • Supreme Court of West Virginia
    • January 25, 1972
    ...784, 155 S.E.2d 877; Weiss v. Soto, 142 W.Va. 783, 98 S.E.2d 727; Rohrbaugh v. Rohrbaugh, 136 W.Va. 708, 68 S.E.2d 361; Abrahams v. Swann, 18 W.Va. 274, 41 Am.Rep. 692, the holdings in those cases do not apply where, as here, it appears that the trial court considered the incompetent eviden......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT