Mcveigh's Ex'r v. Howard

• Decision Date: 02 April 1891
• Citation: 87 Va. 599,13 S.E. 31
• Parties: McVeigh's Ex'r v. Howard.
• Court: Virginia Supreme Court

13 S.E. 31

87 Va. 599

McVeigh's Ex'r

v.Howard.

Supreme Court of Appeals of Virginia.

April 2, 1891.

Interest—Agreement to Pat in PrÆsenti.

A bond reciting, "in consideration of professional services rendered to me by H., I owe, and hereby promise to pay to him, $10,000, " is a promise of payment in prcesenti, and bears interest from date.

S. F. Beach, for plaintiff in error.

G. A. Mushbach, for defendant in error.

Richardson, J. This is a writ of error to a judgment of the circuit court of the city of Alexandria, rendered on the 23d day of September, 1890, in an action of debt, wherein John Howard was plaintiff and S. Ferguson Beach, executor of William N. McVeigh, deceased, was defendant. The action was founded on the following bond: "$10,000. Richmond, Va., Jan'y 9th, 1878. In consideration of professional services rendered to me by John Howard, Esq., I owe, and hereby promise to pay to him, ten thousand dollars. Witness my hand and seal, this day and year above written. W. N. McVeigh. [Seal.]" On the bond was the following indorsement: "The within obligation, to the extent of nine thousand dollars, ($9,000,) is secured by a first judgment lien on ample real estate in Alexandria, this day assigned by me to Mr. Howard. W. N. McVeigh. Richmond, Jan'y 9th, 1878." The bond was also indorsed with several credits, aggregating about $7,000. To the plaintiff's declaration the defendant pleaded as follows: "For a plea to the plaintiff's action the defendant says that his testator, Willlam N. McVeigh, during his life-time, paid to the plaintiff the full amount of money in the writing obligatory specified, according to the tenor and effect thereof. And this he is ready to verify. Wherefore, " etc. For a further plea to the said action, the defendant says that his said testator, during his life-time, made the payments following upon the said writing obligatory, viz.:

                --------------------------------------------------
                |1882.                                 |         |
                |--------------------------------------|---------|
                |Feb'y 24. Cash per Com'r C. W. Wattles|$1,343 17|
                |--------------------------------------|---------|
                |Mar. 4.                               |693 50   |
                |--------------------------------------|---------|
                |1885.                                 |         |
                |                                      |616 28   |
                |Feb'y 26. Proceeds John T. Cox bond   |         |
                |--------------------------------------|---------|
                |" " Cash judgment v. Alf'd Chapman    |60 00    |
                |--------------------------------------|---------|
                |June 24. Cash per C. W. Wattles, com'r|4, 167 68|
                |--------------------------------------|---------|
                |Tolal                                 |$8,814 35|
                --------------------------------------------------
                

—And this he is ready to verify. Wherefore, " etc. "S. Fkuuuson Beach, Executor." To which pleas the plaintiff replied generally, and issue was joined thereon; and thereupon came a jury, etc. On the trial of the cause the bond and the indorsements thereon constituted all the evidence, no other testimony having been offered on either side. The defendant's counsel moved the court to give to the jury three several instructions, as follows: "(1) On an obligation to pay money at a future day, interest runs only from the day of payment, and not from its date, unless interest from date is expressly reserved. (2) The obligation sued on in this case is an obligation to pay money at a future day, when payment should be demanded, and interest upon it runs only from the time of demand actually made. (3) In the absence of any demand, specially made and proved, the interest on said obligation runs from the date of the commencement of the suit." But the court refused each of these instructions, a ad the defendant excepted. Then, on the motion of the plaintiff, the court instructed the jury that the bond sued on bore interest from its date, and to this ruling the defendant also excepted. The jury found a verdictfor the plaintiff, as follows: "We, the jury, find the issue joined for the plaintiff, and that the defendant is indebted to the plaintiff in the sum of $7,652.63, the debt in the declaration mentioned, with legal interest thereon from the 25th day of June, 1885." Motions were made in arrest of judgment, to set aside the verdict and grant a new trial, but the court overruled these motions, and entered judgment according to the finding of the jury; and to this action of the court the defendant also excepted, and in his bill of exceptions set forth the facts and all the evidence, as above stated, which was signed and sealed by the court, and made a part of the record; and the defendant applied for and obtained a writ of error and supersedeas to said judgment and rulings.

All the evidence adduced on both sides at the trial was the bond sued on and the Indorsements thereon. The defense attempted to be set up by the defendant (the plaintiff in error here) is presented in the three instructions asked for by him, and refused by the court. The first instruction asserts the undeniably correct proposition as an abstract question of law that on anobligation to pay money at a future day interest runs only from the day of payment, and not from its date, unless interest from date is expressly reserved; but it has no application to the bond sued on in the present case, as will at once appear from the language of the bond, viewed in the light of repeated decisions of this court. The second and third instructions asked for by the defendant may be considered together. They were clearly founded on a misapprehension of the legal effect of the bond sued on, and were rightly refused. They are as follows: "(2) The obligation sued on in this case is an obligation to pay money at a future day, when payment should be demanded, and interest upon it runs only from the time of demand actually made;" and (3) in the absence of any demand, specially made and proved, the interest on said obligation runs from the date of the commencement of the suit." In utter disregard of the grammatical sense and plain import of the words employed in the bond it is assumed in the second and third instructions asked for by the defendant (1) that the bond sued on is one which obliges the obligor to pay money at a future day, when payment must be demanded, and, if the demand of payment be not then made, the interest runs only from the time of suit brought; (2) that, inasmuch as there was no proof of a demand of payment made prior to the bringing of the suit, interest cannot be recovered except...