Johnson's Ex'x v. Jennings' Adm'r
| Decision Date | 18 April 1853 |
| Citation | 51 Va. 1 |
| Parties | JOHNSON'S ex'x v. JENNINGS' adm'r. |
| Court | Virginia Supreme Court |
(Absent Daniel, J.)
1. To entitle a party to recover back money which he has paid upon a contract which has been wholly rescinded, or the consideration of which has wholly failed, he must not have been guilty of any fraud or illegal conduct in the transaction.
2. In such case, the usual and better mode of counting is the common count for money had and received. But if the plaintiff declares specially, it must appear with sufficient certainty from the facts so set out, or from apt averments, made in the count, that the consideration has wholly failed, and that such failure did not proceed from any fraud or illegal conduct on the part of the plaintiff.
3. In an action of assumpsit against an administrator, he pleads the statute of limitations. It is no answer to the plea, that the defendant's intestate sold to plaintiff slaves in payment of the debt declared on, and that the defendant, since the death of his intestate, had, as administrator, sued for, and upon the title alone, without regard to intestate's indebtedness to the plaintiff, had recovered the said slaves from the plaintiff within five years before the action brought.
4. A party complaining of the admission of improper evidence, must state the facts in his bill of exceptions, from which it will appear affirmatively to the appellate court, that the evidence was improper.
5. In an action of assumpsit for various sums of money lent to or paid for the defendant's intestate, though payments or setoffs cannot be proved without an account of such payments or setoffs filed, yet defendant may prove that the money sued for or any part of it was not lent to or advanced for the intestate, but was paid out of money of the intestate in the hands of the plaintiff.
6. In such action, the issues being on non assumpsit, and the statute of limitations, and the verdict being for the defendant alone on the latter plea, the admission of improper evidence having reference to the issue on the first plea only, and which could have no influence on the issue on the last plea, is not ground for reversing the judgment.
7. A question is propounded to a witness, which is objected to but the objection is overruled, and an exception is taken. The exception does not state the answer of the witness, or that he answered the question. The appellate court will not reverse the judgment.
8. If an exception is taken to an opinion of the court excluding evidence, the exception must show the relevancy of the evidence, or it is no ground for reversing the judgment.
9. If an exception is taken to an opinion of the court excluding written evidence, and the evidence is made a part of the exception, and is against the party excepting, the exclusion of the evidence is not error of which the exceptant can complain.
10. A record of another suit between the same parties, in which the same causes of action are in controversy, and the finding of the jury is against them, is competent evidence.
11. An instruction, which is not relevant to the evidence in the cause, or which is only relevant to written evidence, which does not authorize it, properly refused; the court being the proper tribunal to construe the written evidence.
The facts of this case are stated in the opinion of the court. There was a verdict for the defendant; and Johnson's executrix applied to this court for a supersedeas, which was allowed.
Baxter & Cabell and Garland, for the appellant.
Cooke, for the appellee.
This was an action of assumpsit, brought by John F. Johnson, and afterwards revived by his executrix, against Henry Dunnington, administrator of Philip Jennings. The original declaration contained only the three common counts. There were two amended declarations. The last count of the first, and the last two counts of the second, amended declaration, were special counts; in which it was stated, that Jennings, in his life time, being indebted to Johnson in various sums of money on various accounts, as therein mentioned, it was agreed between them that Jennings, in consideration of said indebtedness and in satisfaction and payment thereof, would sell and deliver to Johnson the following slaves, viz: Lucy, Rives, Henry and Elvira; and the said Jennings did then and there sell and deliver to said Johnson the said slaves, in payment and discharge of his indebtedness aforesaid. But the said defendant, as administrator as aforesaid, not regarding the promises and agreement of his intestate, so by him made as aforesaid, caused his action of detinue to be brought against said plaintiff for said slaves; and, upon the question of title alone, without regard to the indebtedness aforesaid, recovered a judgment for said slaves, with damages for their detention and costs; which judgment was satisfied; and the contract for said slaves, so sold and delivered as aforesaid, having been vacated as aforesaid, and rendered null and void, cause of action thereupon accrued to the plaintiff to recover of the defendant, administrator as aforesaid, the consideration money so paid for said slaves. In consideration whereof, and of assets in his hands, the defendant promised to pay the same to the plaintiff. These special counts differ somewhat in their details, but may be regarded as substantially the same, so far as it may be necessary now to consider them. I have stated, substantially, the details of the next to the last; which seems to be the least objectionable. To each of them there was a general demurrer, in which the plaintiff joined, and which was sustained by the court. And this is the first error assigned in this case.
These counts can only be sustained, if at all, on the ground of a failure of consideration of the contract of sale. There can be no doubt but that if money be paid on a contract of sale, which is wholly rescinded, either by the mutual consent of the parties or by virtue of a clause contained therein, or the consideration of which wholly fails, the party making such payment, if he has been guilty of no fraud or illegal conduct in the transaction, may recover back the money under the common count for money had and received. And though that is the usual and better mode of counting in such cases, there can be no legal objection to a special count, properly setting out the facts from which the cause of action arises. But it must appear with sufficient certainty, from the facts so set out, or from apt averments made in the count, that the consideration has wholly failed, and that such failure did not proceed from any fraud or illegal conduct on the part of the plaintiff. Now, let us apply this test to the counts in question. In substance, they only show a sale and delivery of slaves on the one side, and payment of the purchase money on the other, and a subsequent recovery of the slaves in an action of detinue brought by the vendor against the vendee. They do not show what connection there was, if any, between the contract of sale, and subsequent recovery of the slaves. After the sale, they may have been repurchased by the vendor from the vendee. If the contract of sale was rescinded by mutual consent of parties, or by virtue of a clause contained therein, the fact should have been so averred. So far from this, it is averred in these counts that the action of detinue was brought in disregard and violation of the contract of sale. But if so, why did the plaintiff in that action recover? This is an enigma which ought to have been, but is no where in the declaration explained. If the sale and delivery of the slaves conferred on the vendee an absolute title therein, how could the vendor recover them back without having previously reacquired the title? If he recovered on his original title, unaffected by the supposed contract of sale, the recovery negatives the existence of such contract, or conclusively shows that it was void. It is difficult to conceive how a cause of action could arise out of a void contract; and I suppose it certainly could not, if the contract was rendered void by the fraud or illegal conduct of the plaintiff in the action. It should appear from the count, if special, that the contract was not so rendered void.
But it is...
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