Fant v. Miller

• Decision Date: 16 January 1867
• Citation: 58 Va. 187
• Parties: FANT v. MILLER & MAYHEW.
• Court: Virginia Supreme Court

58 Va. 187

FANT v. MILLER & MAYHEW.

Supreme Court of Appeals of Virginia.

January 16, 1867

1. The rule in equity practice that the answer of the defendant upon any matter stated in the bill and responsive to it, is evidence in his favor, applies where a material disclosure is called for by the bill and made in the answer.

2. A plaintiff cannot destroy the weight of the whole answer by proving that the defendant is unworthy of credit, nor can he incidentally do so by proving that the answer is false in one respect or several respects; the only effect of such proof being to destroy the weight of the answer to the extent to which it is disproved by that amount of evidence which is required by the rule in chancery.

3. The answer of a defendant to a pure bill of discovery, when used on a trial at law, is used as a matter of evidence, the whole of which is to be read as the testimony of a witness including not only admissions against the interest of the respondent, but all assertions in his favor; subject however to be credited or discredited in whole or in part by the court or jury, according to its own intrinsic weight, or its relative weight in comparison or connection with the other evidence in the action at law.

4. When a plaintiff goes into equity for relief on the ground of discovery, the court will give to the answer of the defendant the same effect that would be given to it in a court of law except that the plaintiff cannot contradict the answer by other evidence, as he would thereby prove himself out of court.

5. A commissioner properly has much latitude of discretion in granting continuances of proceedings before him; and the court whose order he is executing will not overrule his action in that respect, unless it be plainly erroneous. Still less will an appellate court reverse a decree for that cause.

6. If the circumstances of the case, and justice, require that a second examination of the same witness should take place, an order will be made to permit it.

7. Unless it was palpably improper to grant leave for the second examination of a witness, an appellate court will not, for this cause, reverse the decree; as the circuit court ought to possess much latitude of discretion in the decision of such questions.

8. A witness ought not to write his deposition or his answers beforehand; nor ought they to be written for him beforehand by counsel or any other person; but he ought to answer the questions orally or from memory, as they are propounded to him.

9. Parties or their counsel may orally or by writing, previous to the examination of a witness, direct his attention to the facts in regard to which he is intended to be examined; and he may refresh his memory in regard to such facts, by examining books or papers, and make memoranda from them or otherwise, especially of dates and amounts, and use such memoranda for the purpose of refreshing his memory, at the time of giving his evidence.

10. A party has a right to be personally present when depositions are taken by his adversary, and a notice which does not afford him an opportunity to be present, is insufficient; and his exception to the deposition on that ground ought to be sustained.

11. If a party gives notice of the taking of several depositions at different places on the same day, so that the opposing party cannot be present to cross-examine all the witnesses, he may select which examination he will attend, and the other depositions will be suppressed.

12. An exception to a deposition, whether endorsed on it, or taken and entered on its face in the process of taking it, or written on a separate paper and filed in the cause (except upon the ground of incompetency, in which case no exception is necessary), not having been brought to the notice of the court below or passed upon by that court, ought to be considered as having been waived, and cannot be noticed by the appellate court; and a general judgment or decree of the court below, against the party making the exception, cannot be considered as involving a decision upon the exception.

13. An exception by a party to the reading of any and all letters from third persons to the other party, filed in the cause, as res inter alios gesta, except such as the exceptor made evidence by reading them himself, some of which letters are competent evidence for some purposes, is too broad, and may properly be overruled on that ground. The exception should specify the letters or parts of letters intended to be excepted to.

14. M is a wholesale merchant and F is a jobber, in the city of B and F makes an arrangement with M to obtain accommodation from M from time to time, in the form of loans, discounts and the sale of goods, on the terms of placing the bonds, notes and accounts of his customers in the hands of M, as collateral security. There is no agreement as to the mode in which these collaterals are to be dealt with by the parties. F afterwards fails, largely indebted to M, who holds these collaterals in large number and amount, the debtors being scattered widely over the country. It is to be inferred:

1. That before the failure of F it was not intended or expected that M was to do more than hold the credits thus placed in his hands, receiving the amount of such as might from time to time be paid to him; but taking no steps to enforce such payments, nor even to notify the collateral debtors of the assignment of their debts.

2. That it was not intended that F should be authorized to collect or renew or otherwise deal with the collaterals, except upon the terms of his paying or delivering to M the money collected or the renewed notes, or substituting others equally good for any that might be withdrawn for the purpose of collection or renewal.

3. After the failure of F it became the right and duty of M to collect, as far and as soon as he could, all the collaterals in his hands, apply the proceeds to the payment of his claim against F, and pay him the surplus, if any. And M was bound to use common or ordinary diligence, such as a man of business and common prudence would exercise about his own affairs in the situation in which M was then placed.

4. M was assignee of these collaterals, bound to use the diligence due by an assignee under the circumstances; and he was not only a principal, as being interested in the subject, but he was agent of F to the extent of his interest, and bound to perform the duty pertaining to such agency. The duty of M was to realize as much as possible out of the collaterals at the earliest practicable period; and he was invested with all the powers necessary or proper to enable him to attain that object.

5. The first thing to be considered by M was the security of the collaterals, and the next their collection. If a debt were good, he should sue; if doubtful, he might give time and get security: if it was good policy not to sue, he might decline it, and might compound or compromise a debt, if, looking to the interest of the creditor, in the exercise of a sound discretion, that was deemed best: and new securities taken by M might properly be in his own name.

6. In determining whether it would be good policy to sue for a debt, or give time on getting security, or to accept a compromise, the fact that M acted under the advice of and upon information derived from his counsel, affords at least prima facie evidence that such action was bona fide and proper.

In May, 1852, Miller & Mayhew, late merchants residing in Baltimore, instituted a suit of foreign attachment in the Circuit court of Essex, to attach a debt alleged to be due by Z. S. Farland to E. L. Fant, by the name of E. L. Fant & Co., to satisfy a debt alleged to be due by said Fant & Co. to said Miller & Mayhew. It turned out that the debt of Farland had been assigned to Wm. F. Phillips, and the attachment therefore failed of effect. But out of that suit arose a cross-suit, which has been productive of a long and troublesome litigation between the parties, the general outlines of which will be now stated.

Fant in his cross-bill filed in April, 1854, while he admits the execution of the note of E. L. Fant & Co. to Miller & Mayhew claimed in the original bill, yet denies that it is still due, but on the contrary avers that upon a full and fair settlement with said Miller & Mayhew of all their transactions with him, they are largely indebted to him. He avers that before and after the execution of the said note he had many transactions with them, and that, under an arrangement with and promise by them to make to him large advances to enable him to carry on his business as a merchant in the city of Baltimore, he was induced by them, on or about the 28th day of May, 1850, to assign to them bonds, notes and other claims, due or to become due to him, to the amount of $69,760.92, a list of which is filed with the bill; that after the said assignment they refused to make all the advances which they had promised to make, although the assignment thus made to them was amply sufficient to indemnify them, and beyond the amount promised to be made to them; that he had frequently urged them to come to a settlement with him, and render an account of the claims assigned to them as aforesaid, and of the amount received by them on account thereof (which he alleged was a very large sum), but they failed and refused to do so; and that he is without remedy to bring about the said settlement, and cause them to disclose and account for the claims assigned to them as aforesaid, but by the aid of the said court. He therefore prayed that they might be made defendants to the bill, and required on oath to answer all the statements and allegations thereof, and fully disclose and show all that they had done in the premises, and further required to...