Keister's Ex'rs v. Philips' Ex'x

• Decision Date: 13 March 1919
• Parties: KEISTER'S EX'RS . v. PHILIPS' EX'X.
• Court: Virginia Supreme Court

98 S.E. 674

KEISTER'S EX'RS .

v.PHILIPS' EX'X.

Supreme Court of Appeals of Virginia.

March 13, 1919.

Error to Law and Chancery Court of City of Norfolk.

Suit by Mary E. Philips, executrix of W. H. Philips, deceased, against M. L. Keister and another, executors of Z. E. Keister, deceased. From a judgment for plaintiff, defendants bring error. Affirmed.

E. R. F. Wells, of Norfolk, for plaintiffs in error.

Edward R. Baird, Jr., of Norfolk, for defendant in error.

PRENTIS, J. M. L. Keister and D. E. Keister, executors of the last will and testament of Z. E. Keister, deceased (defendants), complain of a verdict and judgment in favor of Mary E. Philips, executrix of the last will and testament of W. H. Philips, deceased (plaintiff).

The plaintiff's action is based upon a note for $500, made by Z. E. Keister, payable to her testator, W. H. Philips. The defendants pleaded the general issue and filed a special plea alleging that on July 16, 1916, their testator, Z. E. Keister, had paid to W. H. Philips, the payee of the note, $500 in part payment thereof, and that Philips had signed and delivered to Keister a receipt in writing for that sum; and they paid into court a small balance admitted to be due.

1. The first error alleged is that the court refused to require the plaintiff to file a bill of particulars stating the consideration of the note, basing their motion upon section 3249 of the Code. Such a motion is addressed to the sound discretion of the court and should be sustained in cases where the notice, declaration, or other pleading is so drawn as not to give the defendant proper notice of the particulars of the claim. Driv-er v. Southern Ry. Co., 103 Va. 654, 49 S. E. 1000. In this case the error, if error it was, is clearly harmless, because the plaintiff's case was based upon a negotiable note, and the only reason alleged for desiring a bill of particulars was in order to have the plaintiff state the consideration for which the note was given. Upon the trial the plaintiff admitted that it was given for stock in the Campostella Heights Company, as alleged by the defendants. So that there was no surprise, and no good purpose would have been accomplished by having such a bill of particulars.

2. It is alleged that the court erred in permitting the witness McCoy, an attorney, to testify that W. H. Philips, after the date of the alleged receipt, sent the note to him for collection. It is claimed that this evidence should have been excluded upon the same ground that the self-serving declarations of Philips would have been excluded, and that it was tantamount to admitting Philips' statement to the effect that the debt had not been paid.

We cannot agree with this suggestion. The fact testified to was not a declaration of Philips, but was a fact explaining the attorney's possession of the note, and tending to prove his principal's ownership. Even if considered a declaration by Philips that the note belonged to him at that time, it is admissible, for declarations and conduct as to the ownership of property, made by a person in possession thereof, are generally admissible in evidence upon an issue as to such ownership as part of the res gestæ, 10 R. C. L. 984.

3. It is alleged that the court committed error in allowing the plaintiff during the trial to file an affidavit denying the signature to the receipt, and in this way to put in issue the genuineness of that signature. The defendants relied upon section 3279 of the Code, reading thus:

"Where a bill, declaration, or other pleading alleges that any person made, indorsed, assigned, or accepted any writing, no proof of the fact alleged shall be required, unless an affidavit be filed with the pleading putting it in issue, denying that such indorsement, assignment, acceptance, or other writing was made by the person charged therewith, or by any one thereto authorized by him"

—and objected to any evidence denying the genuineness of the signature to the receipt. Their objection was properly sustained. Then upon motion of the plaintiff she was permitted to file an affidavit denying the genuineness of such signature. We have no doubt whatever of the correctness of this ruling. Trial courts have a very large discretion as to the time of filing and perfecting pleadings, which this court will not review unless such action is clearly erroneous and harmful. Whitley v. Booker Brick Co. 113 Va. 434, 74 S. E. 160; Dean v. Dean, 122 Va. 513, 95 S. E. 431.

4. The court allowed various specimens of the handwriting and signature of W. H. Philips upon checks and letters, proved to be genuine, to be introduced for the purpose of comparison by the jury, and this is also alleged to be erroneous. This question has been the subject of much discussion and of many statutes, and formerly there was the greatest contrariety of decision. In this state, in the...