Blair v. Wilson

• Decision Date: 15 February 1877
• Citation: 69 Va. 165
• Court: Virginia Supreme Court
• Parties: BLAIR & HOGE v. WILSON.

69 Va. 165

BLAIR & HOGE v. WILSON.

Supreme Court of Appeals of Virginia.

February 15, 1877

1. While the giving of a check by a debtor to a creditor is generally presumed to be only a provisional or conditional payment of the debt for which it is given, yet such check may by agreement of parties, be given and received in full payment and absolute discharge and satisfaction of the debt and whether it was so given and received is a question of fact for the jury.

2. A check may be offered in evidence under the money counts; and if there is no other evidence in the case, it is of itself sufficient to entitle the plaintiffs to recover on those counts: yet it is only prima facie evidence of money lent, paid and advanced, or had and received; and when it is proved that no money had come to the hands of the defendant, the presumption raised by the check is rebutted and no recovery can be had on those counts.

3. Where an action of assumpsit is brought for goods sold and delivered, the declaration filed contains only the common counts, the bill of particulars is filed, and the only count in the declaration to which the evidence applied, was that for goods sold and delivered. If it is shown that the goods were absolutely paid for by a check, the demand upon the account is thereby extinguished, and there is no count in the declaration upon which the plaintiffs can recover.

4. Where the facts proved are not plainly insufficient to warrant the verdict of the jury, the court did not err in refusing to set it aside.

Quæ re: Whether under the evidence in this case the action could have been maintained on the check if it had been specially declared on.

The case is fully stated by Judge Burks in his opinion.

Guy & Gilliam, for the appellants.

Ould & Carrington, for the appellee.

BURKS J.

This case is before us on a writ of supersedeas awarded by one of the judges of this court to a judgment of the circuit court of the city of Richmond, rendered in an action of assumpsit instituted in said circuit court by the plaintiffs in error (Blair & Hoge) for the benefit of Thomas P. Hoge, against the defendant in error, Nathaniel M. Wilson.

The declaration contains the common counts only, to-wit, for goods sold and delivered, for work and labor done, account stated, and the usual money counts.

The bill of particulars filed with the declaration is an account of Blair & Hoge against Wilson for " 3,736 lbs. of tobacco at $8, $29,888."

The defendant pleaded non assumpsit and payment; upon which several pleas issues were made up and tried by a jury, and a verdict was rendered for the defendant, and judgment entered thereon accordingly.

On the trial the court gave an instruction to the jury to which the plaintiffs objected. The objection was overruled and the plaintiffs excepted.

After the jury rendered their verdict, the plaintiffs moved the court to set it aside and grant them a new trial, on the ground that the verdict was " not sustained by the evidence and was against the evidence." The motion was overruled, and they again excepted.

The first bill of exceptions sets out the facts proved on the trial, and the second bill refers to and certifies those facts as " all the facts proved on the trial."

It appears from the certificate of facts, that in the latter part of March 1865, Blair & Hoge (the plaintiffs), merchants of the city of Richmond, sold and delivered to the defendant Wilson, also a merchant of said city, the tobacco in the bill of particulars mentioned at the price therein stated, to wit, $29,888, Confederate currency. On the first day of April ensuing, which was Saturday, Wilson called at the business-house of Blair & Hoge in said city, and gave them his check for the said sum of $29,888 upon the Farmers Bank of Virginia, payable to Blair & Hoge or order, and on the same day Blair & Hoge deposited the check to their credit in the Bank of the Commonwealth, where they kept their bank account. Both of these banks had their places of business in said city. When Wilson gave the check to Blair & Hoge, it is certified in the bill of exceptions, that " Blair & Hoge received the check as cash and credited it to the account of Wilson as cash, as was the usual habit of Blair & Hoge in receiving checks from their customers."

The check was not presented for payment at the Farmers Bank on the day of its date and delivery aforesaid. On the following day (Sunday) the city was evacuated by the Confederate army then occupying it, and was entered and taken possession of by the Federal army at an early hour on the next day (Monday); and all business by the banks was necessarily prevented and suspended on that day, and for several weeks thereafter, until the officers of the banks, who had left the city, returned and resumed business. In the dreadful conflagration which occurred in the city on that memorable day (the 3rd of April), the banking houses of both banks were burned, and the officers of the Bank of the Commonwealth, on their return to the city, found amongst the debris of their banking house and contents the check aforesaid, which was presented to the proper officers of the Farmers Bank at the place where the bank had resumed business for payment; but payment was declined, for the reason that the officers did not know whether Wilson had funds to his credit in bank equal to the amount of the check. They stated, however, that if Wilson would give his certificate that he had that amount to his credit, they would pay the check. It does not appear that Wilson was ever informed of this statement.

After the refusal of the Farmers Bank to pay the check, but how long after does not appear, Blair & Hoge had a settlement of their accounts with the Bank of the Commonwealth, and the check was surrendered to them. They did not at once present the check to Wilson for payment, or then give him notice of its non-payment by the Farmers Bank; for it seems, that on the 3rd of April when the bank buildings were burned, the business house of Wilson in the city was also burned, and there was, for a time, uncertainty and confusion as to the whereabouts of any one; as soon as they found him (but how long this was after they had received the check from the Bank of the Commonwealth was not proved,) they notified him of the non-payment of the check by the Farmers Bank, and called on him to pay it; which he refused to do.

It sufficiently appears, that at the time the check was given, Wilson had funds in the Farmers Bank to his credit more than sufficient to pay the check; and it does not appear that he ever afterwards had a sum to his credit in the bank less than the amount of the check, and the cashier of the bank testified that if the check had been presented on the day of its date, he would have paid it.

It further appears that Blair & Hoge used about $70,000 Confederate currency, in paying off debts after the first day of April, and would have used in like manner the amount of the check, if it had been paid on the day of its date or at any time thereafter up to the time they notified Wilson of its non-payment by the bank, and demanded payment of him. It was proved that on the 1st day of April 1865, Confederate States treasury notes, as compared with gold, were worth at the rate of $60 of the notes for $1 of gold.

Such being in substance the facts proved, the court gave to the jury the instruction excepted to.

It is in these words: " If the jury shall believe from the evidence, that on the first day of April 1865, the defendant gave to the plaintiffs, in full payment for the tobacco mentioned in the bill of particulars, his check on the Farmers Bank of Virginia, which check was accepted by the plaintiff in full payment of the account; and the jury shall further believe that at the time of drawing the said check the said Wilson had good and sufficient reasons to believe that he had in hand funds to meet the said check, and the jury shall be satisfied from the evidence that in fact the said check would have been paid if it had been presented upon that day; the jury are instructed, that the receipt of said check by the plaintiffs extinguished their demand upon the account sued upon,...