Ely v. Gray

Citation100 S.E. 660
PartiesELY. v. GRAY.
Decision Date17 September 1919
CourtSupreme Court of Virginia

Error to Circuit Court, Lee County.

Action by T. P. Ely against one Gray, the administratrix of G. C. Duff, deceased. There was a judgment for defendant, and plaintiff brings error. Affirmed.

J. C. Noel, of Pennington Gap, for plaintiff in error.

Davidson & Robinett and Pennington & Cridlin, all of Jonesville, for defendant in error.

KELLY, J. This is an action of debt, brought by T. P. Ely against G. C. Duff's administratrix on a negotiable promissory note under seal for $1,055, bearing the signature of Duff and payable to the order of Ely. The defense relied upon was that the signature to the note, the body of which was wholly in the handwriting of Ely, was a forgery. There was a verdict and judgment below in favor of the defendant.

There are 10 assignments of error, some of which are practical duplications of others. In the petition for the writ of error, which constitutes the only brief furnished by the plaintiff in error, no authorities are cited by the learned counsel in support of any of the propositions advanced.

1. The record shows that the defendant pleaded nil debet, non est factum, and two additional special pleas in writing, and error is assigned to the action of the trial court

in permitting these two special pleas to be filed.

Special plea No. 1 was to the effect:

"That the said plaintiff applied to the said G. C. Duff in his lifetime, and requested him to become surety for said plaintiff on a note to be executed by the said plaintiff as principal and the said G. C. Duff as surety; that the said plaintiff represented to the said G. C. Duff that he did not know from whom he could secure the money, and induced the said G. C. Duff to sign his name on a blank piece of paper on which was written two seals, one above the other; the said G. C. Duff signed on the line in front of the last seal, the said plaintiff representing to the said G. C. Duff that he would sign his name in front of the first of the said seals, and when he found a person who would loan him the money that he, the said Ely, would then write out the note for such amount as was secured and payable to the person from whom he obtained the same; and the said defendant says that the said plaintiff wickedly, and with intent to cheat and defraud the said G. C. Duff, and in a secret place away from the said G. C. Duff, wrote out the said supposed note sued over the signature of said G. C. Duff; and the said defendant further says that the said supposed instrument sued on was without consideration, and is void for lack of consideration, and on account of the fraud perpetrated by the said plaintiff aforesaid."

Special plea No. 2 averred:

"The plaintiff, with a view to avoid the payment of taxes, failed and refused to make out and deliver a list and statement as provide* by the statutes and laws of Virginia to the commissioner of the revenue, whereby the supposed obligation sued on might be legally and properly taxed, in the manner provided by the law."

No evidence whatever was introduced to support the averments contained in either of the special pleas, and therefore, if the filing of the same constituted reversible error, it was only because of their presence in the record.

The bill of exceptions does not disclose the grounds of objections to these pleas, but the objections as presented to us are that the pleas were not sworn to, that they represented no issue that could not have been proved under the general issue, and that they tended to confuse and prejudice the jury.

The fact that there was no verification of the pleas is not in itself a ground of reversal (Grayson v. Buchanan, 88 Va. 251, 257, 13 S. E. 457), and we have no difficulty in holding that there is no other ground upon which their admission can be said to have been prejudicial to the plaintiff. No evidence thereunder having been offered, the only possible reason upon which to base a complaint against them is that they improperly injected into the case damaging and unsupported charges against the plaintiff. If it be true, as the objection concedes, that the matters set up were provable under the general issue, then, the objection carries its own refutation. Sutherland v. Wampler, 119 Va. 800, 802, 89 S. E. 875. Whether this concession is warranted or not, the fact is that the real defense and the evidence introduced to sustain it, while not in accord with either of the special pleas, imputed to the plaintiff a straight-out forgery of the instrument sued on, thus involving him in a charge implying certainly as much moral turpitude as the special averments complained of. When pleas are improperly admitted, but no evidence offered in support thereof, the error will not be ground of reversal, if it appears, as it does here, that the plaintiff could not have been injured thereby. Bank v. Kimber-land, 16 W. Va. 555, 557; Amos v. Stockert, 47 W. Va. 109, 34 S. E. 821, 826; Tower v. Whip, 53 W. Va. 158, 44 S. E. 179, 181, 63 L. R. A. 937. The opinion of this court in Hopkins v. Richardson, 9 Grat. (50 Va.) 485, in so far as it conflicts with the conclusion here announced, does not commend itself to us as sound, is out of harmony with the doctrine of harmless error prevailing in this jurisdiction, and is disapproved.

2. It is next insisted that the court erred in permitting the defendant to file the following statement of her grounds of defense:

"That the plaintiff had forged the note or instrument sued upon; that he, in an attempt to carry out a general scheme of fraud, had not only forged the note sued upon, but that he had forged other notes on other parties, to wit, notes on Vass Banner, a note or notes on J. F. Witt, another note on John B. Pennington, with G. C. Duff as surety thereon, for $500, and that he had forged the name of G. C. Duff as surety on a note which plaintiff held against Wade Ladd and Bertha Ladd."

This statement was tendered and allowed to be filed in response to the plaintiff's motion and the court's consequent order requiring the defendant to file a bill of particulars showing the grounds of her defense. The record does not disclose the reasons assigned by the plaintiff in the lower court for his objections to this statement, but, as urged here, they are:

"That there was no proper plea upon which to base such a bill of particulars, and because the same could only tend to confuse and prejudice the jury."

A bill of particulars, or a statement of the grounds of the defense, being no part of the pleadings, defects therein cannot be reached by demurrer, or, as is true here, by objections equivalent to a demurrer. Geo. Campbell Co. v. Geo. Angus Co., 91 Va. 438, 22 S. E. 167; Columbia Accident Association v. Rockey, 93 Va. 678, 25 S. E. 1009; King v. N. & W. R. Co., 99 Va. 625, 39 S. E. 701. It is, of course, conceivable that a bill of particulars containing improper allegations mightbe so exploited before a jury as to constitute reversible error, but nothing of that character occurred in this case.

Furthermore, not only was the scope of the defendant's pleadings broad enough to warrant the introduction of evidence in proof of the facts set up in the grounds of the defense, but some such evidence was in fact introduced and was properly admitted, as appears from what is said in the course of this opinion concerning the other assignments of error.

3. There were a number of exceptions to the rulings of the trial court in the admission of testimony, the disposition of which in this court will require a somewhat detailed recital of parts of the evidence.

The defendant introduced as a witness Mrs. Sallie Wygal, who testified that in the summer or early fall of the year 1915 the plaintiff stated to her that Vass Banner and J. F. Witt owed him some money; that she did not know that he said he had notes against these parties; that as best she could remember he said Witt owed him $1,000; that she told him she wanted to borrow some money, and he said, if he could collect it, he would lend it to her; that he claimed to be getting 10 per cent. interest from Witt, but would charge her 6 per cent. •

J. F. Witt was introduced, and testified that he never owed Ely $1,000, or any other sum; that he had been owing Ely's brother $1,500 for three or four years, which he had repaid in three installments, the last one being paid shortly before the trial; that so far as he could remember he had never borrowed any money from, or executed any notes to the plaintiff.

J. F. Flanary testified that in the summer of 1913 the plaintiff showed him three notes, one for $285, one for $300, and one for an amount which he did not remember, all pay-able to the plaintiff, and bearing the signature of Vass Banner.

There was further testimony on behalf of the defendant as follows: (1) By the witness A. P. Skidmore, that the plaintiff told him that he had a note on Vass Banner for $1,500, and was likely to become the owner of the Jeans farm, owned by Banner, adjoining that of the plaintiff; (2) by the witness John Collier, that the plaintiff, while trying to borrow some money from Collier, had told him that he had a note against Vass Banner for $1,500; (3) by the witness Wright Collier, that Ely, on an occasion when he was renewing a note which he owed to Wright Collier, told him that Banner owed him $1,100; (4) by the witness Harrison Phipps, that the plaintiff had told Phipps that Banner was indebted to him, and he was going to become the owner of the Jeans place, adjoining him; (5) by the witness Wm. Phipps, that Ely told him that Banner owed him $1,500, adding, "I have got to call on him at once; if he don't pay me, I am going to take possession of the Jeans farm"; (6) by the witness Vass Banner, that he had never owed the plaintiff any of the notes or sums of money mentioned in the above-recited testimony; that the only note he ever gave him was one for $69.75 in 1913, which had been paid; that, having heard some...

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5 cases
  • State v. Mchenry
    • United States
    • West Virginia Supreme Court
    • March 20, 1923
    ...tending to show guilt. Objection on the ground of irrelevancy, says the Supreme Court of Virginia, is not favored. Ely v. Gray, 125 Va. 708, 100 S. E. 660. And it was held in that case that circumstances altogether inconclusive, if separately considered, may by their number and joint operat......
  • Citizens Bank of Darlington v. McDonald
    • United States
    • South Carolina Supreme Court
    • February 11, 1943
    ...proven against him is admissible, when it indicates a scheme on his part including the act in question. Also see the case of Ely v. Gray, 125 Va. 708, 100 S.E. 660, it held that in an action on a note, where the defendant asserted that it was a forgery, and claimed that it was forged by the......
  • Citizens Bank Of Darlington v. Mcdonald
    • United States
    • South Carolina Supreme Court
    • February 11, 1943
    ...him is admissible, when it indicates a scheme on his part including the act in question. Also see the case of Ely v. Gray, 125 Va. 708, 100 S.E. 660, it was held that in an action on a note, where the defendant asserted that it was a forgery, and claimed that it was forged by the plaintiff ......
  • State v. McHenry
    • United States
    • West Virginia Supreme Court
    • March 20, 1923
    ... ... course there is a distinction between the sufficiency of such ... circumstances to convict and their admissibility as facts in ... a chain of circumstances tending to show guilt. Objection on ... the ground of irrelevancy, says the Supreme Court of ... Virginia, is not favored. Ely v. Gray, 125 Va. 708, ... 100 S.E. 660. And it was held in that case that circumstances ... altogether inconclusive, if separately considered, may by ... their number and joint operation, especially when ... corroborated by moral coincidences, be sufficient to ... constitute conclusive proof. One of ... ...
  • Request a trial to view additional results

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