Moore Lumber Corp. v. Williamson

• Citation: 67 S.E. 374,110 Va. 775
• Court: Supreme Court of Virginia
• Decision Date: 10 March 1910
• Parties: MOORE LUMBER CORPORATION et al. v. WALKER & WILLIAMSON

67 S.E. 374

110 Va. 775

MOORE LUMBER CORPORATION et al.

v.WALKER & WILLIAMSON

Supreme Court of Appeals of Virginia.

March 10, 1910.

1. Appeal and Error (§ 1005^*)—Findings— Conclusiveness—Conflicting Evidence.

The jury's finding upon conflicting evidence will not be disturbed on appeal; the verdict being approved by the trial court.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3948-3954; Dec. Dig. § 1005.*]

2. Frauds, Statute of (§ 144*)—Operation of Statute—Waiver of Statute as Bar— Admission of Parol Evidence.

Where defendant put in evidence the writing claimed to bind him to answer for another's debt, and did not rely on its insufficiency under the statute of frauds, and plaintiffs, without objection, proved by parol their agreement with defendant's agent binding defendant to answer for another's debt, the defense of the statute of frauds and of the insufficiency of the writing thereunder was waived, and cannot be set up after verdict for plaintiff.

[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 351; Dec. Dig. § 144.*]

3. Appeal and Error (§ 882*)—Estoppel to Allege Error—Admission of Evidence.

Where defendant in his oral testimony attempted to explain a writing signed by him in which he agreed to answer for another's debt, he cannot complain on appeal that oral evidence was admitted to supplement and explain the writing.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3591; Dec. Dig. § 882.*]

4. Guaranty (§ 16*)—Contract—Consideration.

Where plaintiffs declined to make further advances to another and were only induced to do so by defendant's guaranty that the advances would be repaid, the making of subsequent advances was a sufficient consideration for the guaranty.

[Ed. Note.—For other cases, see Guaranty, Cent. Dig. §§ 14, 15; Dec. Dig. § 16.*]

5. Appeal and Error (§ 970*) — Review — Discretion of Trial Court—Order of Admitting Evidence.

The order in which the evidence is admitted is largely within the trial court's discretion, and its ridings thereon will only be reversed in exceptional cases.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3851; Dec. Dig. § 970.*]

6. Trial (§ 75*)—Exceptions—Waiver.

An exception to a ruling excluding a letter from evidence when offered, but permitting it to be offered later in the trial, was waived by the offering party's failure to later offer the letter as permitted.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 180; Dec. Dig. § 75.*]

7. Evidence (§ 271*)—Self-Serving Declarations.

In an action on a written contract of guaranty, a letter written by the guarantor after the guaranty letter was written and the dealings between the parties had terminated, which attempted to explain the meaning of his guaranty, could be excluded as self-serving.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 1075; Dec. Dig. § 271.*]

Error to Law and Chancery Court of City of Norfolk.

Action by Walker & Williamson against the Moore Lumber Corporation and another. Judgment for plaintiffs, and defendants bring error. Affirmed.

J. Sydney Smith, for plaintiffs in error.

Thorp & Bowden, for defendants in error.

WHITTLE, J. The judgment under review was recovered by the defendants in error, Walker & Williamson, plaintiffs below, against the plaintiffs in error, the H. P. Moore Lumber Corporation and C. W. Cake, in a motion for money upon the general issue as to both defendants, and a special plea of set-off interposed by the lumber company.

The gravamen of the latter plea is that the plaintiffs had appropriated to their own use certain personal property belonging to the II. P. Moore Lumber Corporation, thevalue of which was in excess of the demand upon which their motion is based. Inasmuch, however, as that issue was resolved by the jury in favor of the plaintiffs upon a conflict of evidence, and their verdict approved by the trial court, that assignment of error does not call for further notice.

The essential facts of the case considered as upon a demurrer to the evidence are as follows: In June, 1907, the H. P. Moore Lumber Corporation engaged the services of the plaintiffs, who were lumber brokers in the city of Norfolk, to handle on commission the entire output of their sawmill, located in Gates county, N. C. The course of dealing between the parties made it necessary for the plaintiffs, from time to time, as the exigencies of the business required, to make advances to defray the running expenses of the mill. Such advances were to be refunded, and the plaintiffs' commissions paid out of the proceeds realized from sales of lumber received from the mill. The avails from these sales proved inadequate to meet the advances, and early in September, 1907, the lumber company was found to be indebted to the plaintiffs in the sum of $1,100. In this state of affairs the president of the company, Hockaday Moore, called on the plaintiffs, as usual, for money to meet the mill's roll, but they refused to make any further advances on the faith of the output of the mill. Thereupon Moore left their office, but returned the next day bearing the following note:

"Norfolk, Virginia, Sept. 17th, 1907. "Messrs. Walker & Wmson.

"Gentlemen: I did not get down to your office yesterday, but any arrangement Hockaday makes with you I will stand by him and back him all the way through.

"Yours, C. W. Cake."

It was then agreed between the plaintiffs and Hockaday Moore that they would continue to make such advances as might be necessary to meet the running expenses of the mill, and, if at the close of their dealings the sales of lumber were found to have netted less than the advances, that C. W. Cake should be personally answerable to the plaintiffs for the deficiency. The demand which is the subject of this litigation is founded upon the foregoing agreement.

Cake denies liability on the ground that the paper signed by him is not sufficient under the statute of frauds to make him responsible for the debt or default of the H. P. Moore Lumber Corporation, "for the reason that without verbal testimony there is nothing to show any connection between it and said corporation, and that verbal testimony is not admissible to splice out a liability predicated upon a defective writing. No consideration was shown for the guaranty."

For the purposes of this case, it is immaterial whether the writing in question is or is not sufficient by its terms under the statute of frauds to fix responsibility upon Cake for the debt of his codefendant. The writing was put in...