Newlin v. Beard
| Decision Date | 21 February 1873 |
| Citation | 6 W.Va. 110 |
| Parties | NEWLIN v. BEARD, ET AL. CYRUS NEWLIN, PLAINTIFF IN THE ACTION AND PLAINTIFF IN ERROR, AGAINST ANDREW BEARD AND GEORGE BROWN, DEFENDANTS IN THE ACTION AND DEFENDANTS IN ERROR. |
| Court | West Virginia Supreme Court |
1. The burden of proof of the formal execution of a deed or bond, when put in issue under the plea of non est factum, rests upon the party claiming under the deed or bond; and that proof must show that the deed or bond was signed sealed and delivered by the authority of the obligor as his deed.
2. Possession of the bond, or deed, by the obligee, is prima facie evidence of delivery: and where the Defendants admit the signing and sealing, the rule of evidence is sufficiently complied with by the Plaintiff when he produces before the jury the instrument, and it is then incumbent on Defendants to show some special matter in avoidance.
3. A deed, or bond, signed, sealed and delivered to the obligee or his previously constituted agent, upon condition, is not the deed of the party signing, until the condition is complied with.
4. Under the statute, Code ch. 130, §23, a party to a civil action may be a witness in behalf of himself, or of any other party, to prove the conditions upon which a bond was delivered.
5. Beard executed a bond, and delivered it to Newlin as his deed; N. sometime afterwards handed the bond back to Beard and requested him to procure the signatures of certain other persons. Held,
1. N thus constituted B. his agent for the purpose of obtaining the signatures.
2. The party signing, and delivering the bond, under those circumstances, to the agent, upon condition, can, under the plea of non est factum, prove by the agent, or himself, the agency, and the condition upon which the delivery was made to the agent.
3. The condition made known to the agent, at the time of delivery to him, is notice to the principal, and he is bound by it.
6. A statement made by the Court in the presence of the jury which does not prejudice the rights of the Plaintiff in the action, although improper, is not such error as would justify an Appellate Court in reversing the judgment.
7. An exception to the opinion of the Court, refusing a new trial, states all the evidence introduced on the trial, instead of the facts proved. The Appellate Court will not consider the parol evidence of the exceptor, so far as it is conflictory with that of the Appellee; and when the evidence thus viewed does not show that the verdict was contrary thereto, the judgment should not be reversed and a new trial awarded.
This is an action of debt from the Circuit Court of Greenbrier county. The defendant, Beard, retained the Plaintiff as his attorney to defend an action against him and others, of whom the defendant, Brown, was one, his sureties on a bond executed to James Jarrett. The contract upon which this action was brought is as follows:
Andrew Beard having retained Cyrus Newlin as counsel to defend him in an action of debt, instituted against him and others in the Circuit Court of Greenbrier county, in which James Jarrett, Jr., suing for the benefit of James Jarrett, Sr., claimed $6,000 to be due by bond, with interest from the 17th day of February, 1862: Now, if the said Cyrus Newlin shall successfully defend the said suit and procure a verdict or judgment in favor of said Andrew Beard and others, we, and each of us, promise and oblige ourselves, our heirs, & c., to pay to the said Cyrus Newlin the sum of fifteen hundred dollars ($1,500); conditioned, however, upon such verdict or judgment being affirmed, should there be an appeal taken within one year to the Court of Appeals.
And it is further promised and agreed that should the said suit be settled by compromise, or otherwise than by ordinary course of Law, that the said Cyrus Newlin shall receive one-third of the amount said debt may be reduced, such sum in no case to exceed the sum of $1,500 before mentioned.
Witness our hands and seals this 16th day of September, 1867:
| A. BEARD, | [SEAL.] |
| GEORGE BROWN, | [SEAL.] |
| _____ _____ | [SEAL.] |
There were two pleas filed: payment, and non est factum by the defendant Brown
It was admitted by the Defendants that the signatures to the bond in suit were genuine; that the suit of Jarrett vs. Beard, et als., had been settled by compromise and that the consent judgment therein entered was for an amount less than the amount claimed by more than $4,500; that the obligation upon which this action was founded was given in consideration of services to be rendered by the Plaintiff in the defence of said suit of Jarrett vs. Beard, et als., and that the Plaintiff had discharged all the duties required of him by his contract.
All of the evidence related to the plea of non est factum --Four bills of exceptions were taken which contain statements of the testimony of the witnesses and not of the facts proven. There was a verdict for the Plaintiff upon the issue raised by the plea of payment and for the defendant Brown, upon the issue presented by the plea of non est factum.
It appears that the defendant Beard employed Newlin as an attorney and executed to him the above obligation; that afterwards the Plaintiff applied to Beard to have this obligation signed, according to the testimony of the Plaintiff, by one or two of his sureties on the Jarrett bond, according to the testimony of Beard by his sureties on the Jarrett bond; that Beard took the obligation and presented it to his co-defendant Brown, who signed it on condition that it should be signed by all the other sureties on the Jarrett bond; that the other sureties refused to sign it and it was then returned to Plaintiff. Nothing was said at the time the obligation was returned to the Plaintiff as to all the obligors on the Jarrett bond being required to sign the obligation, nor was anything on this subject said until after the settlement of the Jarrett suit.
The Plaintiff moved the Court to exclude from the jury all evidence relating to the condition or agreement on which the defendant Brown signed and delivered the instrument in suit to his co-defendant Beard. Whereupon the Court stated, in the hearing of the jury, that in consideration of the evidence that had gone before, in reference to the Plaintiff's requesting the defendant Beard to procure the signatures of the obligors in the Jarrett bond to the writing sued on, when he returned with but one of the signatures it was sufficient to put the Plaintiff upon enquiry before accepting the delivery of the same from Beard.--To the opinion of the Court overruling said motion, as well as to the said statements of the Court, the Plaintiff excepted.
The Plaintiff moved the Court to set aside the verdict and grant a new trial, which was overruled.
Improper remarks of the court are not ground for reversal unless they prejudice the party objecting to them.
F. J. Snyder for Plaintiff in error.
Deeds which are on their face complete contracts requiring nothing but delivery to make them operative and final, cannot be delivered as an escrow except to one who is a stranger to the instrument, unless the condition upon which it is delivered be made known to the obligee before he accepts the instrument. Co. Litt. 36 a; Shep. Touchs. 57; Thoroughgood's case, 9 Rep., 136; Ward vs. Churn, 18 Gratt., 807; Hicks vs. Goode, 12 Leigh, 479; Stuart vs. Livesay, 4 W.Va., 45; Smith vs. Moberly, 10 B. Monroe, 266; Millett vs. Parker, 2 Metc. (Ky.), 615; Webb vs. Baird, 27 Ind., 368.
In the case of Pawling vs. The United States, 4 Cranch, 219, names of persons who failed to join in the execution, were inserted in the body of the bond; and it does not appear that the delivery was to a party to the instrument.
Assuming an agency on the part of Beard for Newlin to procure the signature of Brown, such agency was a strict and special one, determining when the signature was obtained. For the purpose of rendering any conditions effectual, Beard must then be regarded as the agent of Brown to communicate to Newlin the qualification of Brown's liability.
The statement made by the Judge in the hearing of the jury was a virtual decision upon the issue of fact between the parties and a trespass upon the province of the jury. McDowells vs. Crawford, 11 Gratt., 377; Whitacre vs. McIlhaney, 4 Munf. 310; Brook vs. Young, 3 Rand., 114; Gregory vs. Baugh, 2 Leigh, 665; Moore vs. Chapman, 3 H. & M., 266.
The question objected to by Plaintiff was leading, and the witness should not have been permitted to answer it.--1 Greenl. Ev. §434. It was moreover irrelevant and upon that ground objectionable.--1 Greenl. Ev. §52.
Harris for Defendant in error.
The broad principle laid down in Touchstone and some of the earlier authorities, that the delivery of a deed to be good as an escrow must be made to a stranger, is not now the law. Two exceptions to the rule are clearly recognized by nearly all the modern authorities, viz:
1st. Where the delivery is to the obligee, and the condition upon which it is to take effect is made known to him at the time of delivery.-- Ward vs. Churn, 18 Grat. 813; Livesay vs. Stuart, 4 W.Va. 45; and
2nd. Where the instrument is imperfect or incomplete upon its face, or denotes that something more besides delivery is to be done to make it a complete instrument.-- Ward vs. Churn, 18 Grat. 812; Hicks vs. Goode, 12 Leigh, 479; Pawling vs. U.S., 4 Cranch, 218.
It has always been held that when a deed is delivered to a stranger as an escrow, and by him delivered to the obligee, without any knowledge on the part of the latter of the non-performance of the condition upon which it is to take effect, the obligor is not precluded from showing that it was delivered on condition, and that the condition...
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