Burton's Ex'r v. Manson

• Decision Date: 17 September 1925
• Citation: 129 S.E. 356
• Parties: BURTON'S EX'R . v. MANSON et al.
• Court: Virginia Supreme Court

129 S.E. 356

BURTON'S EX'R .

v.MANSON et al.

Supreme Court of Appeals of Virginia.

Sept. 17, 1925.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Corroborating Evidence.]ing decedent board and lodging for a number of years.

Error to Corporation Court of Roanoke.

Suit by the executor of W. J. Burton against H. W. Manson and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

H. T. Hall and Paul C. Buford, Jr., both of Roanoke, for plaintiff in error.

Carleton Penn, of Roanoke, for defendants in error.

BURKS, J. This was an action by Burton's executor against H. W. Manson and the administrator of May Burton Manson, his wife. The plaintiffs sought recovery on a bond for $607 made by H. W. Manson and May Burton Manson, payable to W. J. Burton, on demand, and on an open account for $75.

May Burton Manson was the daughter of W. J. Burton, the plaintiff's testator, and the defense relied on was that Burton had lived with the Mansons from 1906 to June 1, 1915, and that the bond and account sued on had been paid by board and lodging furnished by the Mansons during that time, and that Burton had declared that the debt had been so paid.

Three witnesses for the defendant testified that from some time in 1906 to 1915 W. J. Burton made his home with the Mansons in Petersburg, and that Burton and Manson were on the best of terms. They also testified that Burton was a very careful and particular man in his business affairs and close in his business dealings with others, but they had no knowledge of any arrangement between them as to how Burton was to pay his board except that one of them states that some time during the period above mentioned and prior to June, 1915, Burton stated to him that he was not paying cash board to the Mansons. The same witness also states that Burton was a very close man, but honest and fair in his dealings. It also appears from the testimony of this witness that Burton was away from the Mansons' home frequently on visits and another witness states that Burton lived in Bristol one year between 1906 and 1915. The chief witness for the defendants was the defendant H. W. Manson, who testified that Burton came to Petersburg to live with them in the spring of 1906, and from then until June 1, 1915, made his home with them, and that Burton told him he would pay $5 a month room rent and $15 a month for board and laundry; that at the time Burton came to live with them Manson and his wife were indebted to Burton in the sum of $1,0S3, which was evidenced by their bond; that Burton credited the amount due for board on this debt, but paid no cash board; that he made and gave to the witness a statement oh March 1, 1911, showing a balance due Bur ton by witness and his wife of $1,466.02, which statement he filed with his evidence as "Manson Exhibit No. 1"; that credits for board were made by Burton to some time in 1911 and witness had expected to collect during 1911 money from the sale of his residence, but did not succeed in selling the place until 1912, when he paid Burton $800 in cash. Burton made up and gave to the witness another statement on August 1, 1912, showing the credit of $S00 and various sums for board, and leaving a balance due to Burton of $664.03; that the last statement brought the account down to August 1, 1912, and in June, 1913, the bond for $607 sued on was prepared by Burton and executed by the witness and his wife, and delivered to Burton, and that Burton then delivered to the witness the old bond for $1,083; that Burton continued to live at the home of witness in Petersburg until June 1, 1915; that some time in 1915, but before Burton left his home, Burton said to the witness:

"Henry, that debt is paid. You do not owe me anything. If anything, I am in debt to you."

The witness states that thereafter Burton never mentioned the matter to him and the amount of $75 sued for he considered paid as well as the bond when Burton left his home in 1915. On cross-examination the witness stated that Burton had never paid any money for board to him; that all amounts due for board were credited on the debts owing by the witness and his wife to Burton; that the balance due according to the first statement on March 1, 1911, was $1,466.02, and on the last statement as of August 1, 1912, was $664.05; that all board had been properly credited up to August 1, 1912, and that the balance of $664.05 shown on the last statement was correct; that the witness and his wife owed Burton that amount at that time and were then entitled to no further credit; that some adjustment was thereafter made, but he could not recall exactly what, and that the bond sued on for $607 was executed in June, 1913, and was based on the statement of August 1, 1912, and that the amount of that bond was owing to Burton by Manson and wife, subject only to credit for board and lodging since August 1, 1912; that the only way the bond had been paid was by board and lodging furnished W. J. Burton by witness from August 1, 1912, to June 1, 1915, at the rate of $20 per month; that Burton had paid none of this board in cash; that, if Burton had given witness or his wife any checks in payment thereof, he did not know anything of them. The witness was then confronted with seven checks given by Burton either to Manson or to his wife, each showing that it was for board or board and room rent up to date. The first of these checks was dated October 30, 1913, payable to the order of H. W. Manson and indorsed H. W. Manson per Mrs. H. W. Manson. The last of these checks was dated December 18, 1915, was payable to the order of H. W. Manson and indorsed by him, and stated on the face of it that it was for board to date. There were also produced a number of checks drawn by W. J. Burton in favor of Mrs. T. G. Folkes, another daughter of W. J. Burton, for board running from May 4; 1914, to May 11, 1916. None of them was for a large amount, but each stated that it was for board. When confronted with these checks, Manson admitted that they were in the handwriting of W. J. Burton and that the statements hereinbefore referred to were in his handwriting, but he stated that he had never heard of these checks given to Mrs. Manson in payment of board before; that he had forgotten about the one indorsed by him; that the checks were a complete surprise to him; that they were all for board; and that the amounts shown by the checks which were paid to Mrs. Manson and to Mrs. Folkes ought to be deducted from his claim for board. He also admitted that Burton was frequently away on visits at different times.

There was exhibited with the testimony of H. W. Manson the bond above mentioned for $1,0S3, with indorsements of the credits thereon, and statements of the balance, due, including other notes, which showed that the Mansons were indebted to him in the sum of $664.03 as of August 12, 1912. If interest be calculated on this sum at 6 per cent. until June 1, 1913, it would amount to $697.23. There is the following indorsement on the bond for $1,083:

"June 7, 1913,

"Credit board amt. to this date and renewed for balance. W. J. B.

"June 7 credit for six months' board at $15.00

per month $90.00."

Subtract this $90 from the $697.23 would leave $607.23 as of June 7, 1913. The bond sued on is dated June 7, 1913, and is for $607.

Manson also stated in his testimony that the account sued on, as well as the bond, was included when Burton said that the debt of Manson was paid and that they owed him nothing. Although he says that this took place prior to June 1, 1915, we find the account sued on has this entry:

"January 25, 1919. Credit by check for $50.00."

So that although he regarded the account as paid on June 1, 1915, we find him making a payment thereon as...