Bernstein v. Bord

• Decision Date: 29 April 1926
• Citation: Bernstein v. Bord, 146 Va. 670, 132 S.E. 698 (1926)
• Parties: LOUIS BERNSTEIN v. SAMUEL BORD.
• Court: Virginia Supreme Court

Page 670

146 Va. 670

LOUIS BERNSTEIN v. SAMUEL BORD.

Supreme Court of Virginia, Richmond.

April 29, 1926.

1. MORTGAGES AND DEEDS OF TRUST — Parol Agreement between Debtor and Creditor that if Property did not bring Sufficient Amount at Public Sale to Discharge the Debt the Creditor should Buy it in and Release the Debtor for any Deficiency on Account of the Debt — Case at Bar. — In the instant case the only question presented for the determination of the jury was whether or not the plaintiff, the holder of a bond of defendant secured by a deed of trust, had a valid parol understanding or agreement with defendant, before the bond referred to became due, to the effect that the property should be sold under said deed of trust and if it did not bring a sufficient amount at the public sale to discharge the debt, the plaintiff should buy in and release the defendant from any deficiency on account of the debt. The evidence was confined entirely to the testimony given by the parties themselves and for the most part was in conflict.

Held: That a verdict for defendant resolved the question in defendant's favor and the appellate court was bound by the conclusion of the jury and must accept defendant's statement in regard to the transaction as true.

2. CONTRACTS — Acceptance — Acceptance Inferred. — While it is true that in order to constitute a contract there must be an assent to or acceptance of an offer, it is well settled law that the assent need not be given in express words, but may be inferred from the acts and conduct of the offeree.

3. MORTGAGES AND DEEDS OF TRUST — Parol Agreement that if Sale Under Deed of Trust did not Bring Sufficient Amount to Discharge the Debt, Beneficiary in the Deed of Trust should Buy the Property and Release the Debtor From any Deficiency — Acceptance of Agreement by Grantor in Deed of frust — Case at Bar. — In the instant case, an action by beneficiary in a deed of trust to recover the difference between what the property brought at public sale under the deed and the debt, the only question at issue was whether plaintiff, the beneficiary in the deed of trust, and defendant, grantor, had a parol agreement before the bonds secured by the deed of trust became due to the effect that the property should be sold under the deed of trust and that if it did not bring the sufficient amount to discharge the debt, plaintiff should buy it in and release defendant from any deficiency on account of the debt. Defendant testified that plaintiff, the beneficiary in the deed of trust, told him that if the property did not bring enough money to pay the debt that he would buy it in and "call it square." Defendant went home and made no further effort to communicate with plaintiff in regard to the matter or to make any other arrangement to pay the debt or otherwise to protect his interest in the property.

Held: That although it did not appear that defendant expressly assented in words to the proposition made by plaintiff, yet, taking into consideration the language used by the parties on the occasion, the circumstances preceding and surrounding it, and defendant's subsequent conduct in reference to the matter, the jury were justified in finding that defendant intended to and did assent to plaintiff's proposal; and that an agreement existed between the parties which had the effect of releasing defendant from the debt plaintiff was seeking to recover.

4. CONTRACTS — Consideration — Definition of Valuable Consideration. — A valuable consideration is a benefit to the party promising, or to a third person at his request, or an inconvenience, loss, or injury, or the risk of it, to the party promised.

5. CONTRACTS — Consideration — Mutuality of Promise. — Mutuality of promise as a general rule constitutes a sufficient consideration to support a contract.

6. MORTGAGES AND DEEDS OF TRUST — Promise of Beneficiary in a Deed of Trust to Buy in the Property and Release the Debtor if the Property did not Bring at Public Sale a Sufficient Amount to Pay the Debt — Consideration for the Promise — Case at Bar. — In the instant case, an action by a beneficiary in a deed of trust to recover the deficiency between the amount that the property brought at a public sale under the deed and the debt, the defendant alleged a promise made by the plaintiff that if the property did not bring an amount sufficient to discharge the debt, the plaintiff would buy it in and "call it square." Plaintiff told defendant that he considered the property worth considerably more than the debt. On the other hand, in agreeing to allow his property to be sold at auction without making further effort to satisfy the deed of trust, defendant took the risk of losing the difference between the debt and the actual value of the property.

Held: That this was a sufficient consideration to support the agreement.

7. NEW TRIAL — Appeal and Error — Where Court would Have Given a Different Verdict. — Where some evidence has been given which tends to prove the fact in issue, or the evidence consists of circumstances and presumptions, a new trial will not be granted merely because the court, if upon the jury, would have given a different verdict. To warrant a new trial in such cases, the evidence should be plainly insufficient to warrant the finding of the jury. And this restriction applies a fortiori to an appellate court.

8. NEW TRIAL — Appeal and Error — Verdict Approved by Trial Judge — Weight to be Given to Trial Judge's Approval. — In the appellate court there is superadded to the weight which must always be given to the verdict of the jury fairly rendered, that of the opinion of the judge who presided at the trial, which is always entitled to peculiar respect upon the question of a new trial.

9. NEW TRIAL — Where Reasonably Fair-Minded Men May Differ — Conflicting Evidence. — If there is a conflict of testimony on a material point, or if reasonably fair-minded men may differ as to the conclusions of fact to be drawn from the evidence, or if the conclusion is dependent upon the weight to be given the testimony, in all such cases the verdict of the jury is final and conclusive and cannot be disturbed either by the trial court or by the appellate court.

Error to a judgment of the Circuit Court of the city of Portsmouth, in a proceeding by motion for a judgment for money. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

Topping & Topping and Jas. G. Martin & Bro., for the plaintiff in error.

No appearance for defendant in error.

CHINN, J., delivered the opinion of the court.

On September 28, 1922, Louis Berstein loaned Samuel Bord $3,270.00, for which Bord executed his three several bonds for the sum of $1,090.00 each, bearing interest from date, and payable one, two and three years after date, respectively. The bonds were secured by a deed of trust on certain real estate belonging to the obligor located in the town of Cape Charles, Virginia. Bord defaulted in the payment of the first bond to fall due, and the property was sold at public auction, in accordance with the terms of the deed of trust, on November 17, 1923. At this sale Bernstein, being the only bidder, became the purchaser of the property at the price of $2,500.00, and it was conveyed to him by the trustee accordingly. Bernstein then instituted this action by notice of motion to recover of Bord the balance due on the debt evidenced by said bonds, amounting, after deducting the net proceeds of said sale, to $1,273.09. Bord filed an affidavit denying that he owed the plaintiff any part of the debt claimed in the notice, and a jury was impaneled to try the issue, who, after hearing the evidence, returned a verdict in favor of the defendant. The plaintiff thereupon moved the court to set aside the verdict on the ground that the same was contrary to the law and the evidence, but the court overruled the motion and entered judgment for the defendant, which action on the part of the court is assigned as error.

It clearly appears from the evidence and the whole record that the only question presented for the determination of the jury was, whether or not the plaintiff and defendant had a valid parol understanding or agreement, before the bond referred to became due, to the effect that the property should be sold under said deed of trust and if it did not bring a sufficient amount at the public sale to discharge the debt, Bernstein should buy it in and release Bord from any deficiency on account of said debt.

The evidence in reference to this question is confined entirely to the testimony given by the parties themselves, and is for the most part in conflict, but all such matters having been resolved by the...