Persinger's Adm'r v. Chapman

• Decision Date: 09 July 1896
• Citation: 25 S.E. 5,93 Va. 349
• Court: Virginia Supreme Court
• Parties: PERSINGER'S ADM'R. v. CHAPMAN et al.

93 Va. 349

25 S.E. 5

PERSINGER'S ADM'R.

v.CHAPMAN et al.

Supreme Court of Appeals of Virginia.

July 9, 1896.

Equity—Reformation of Instrument—Mistake —Laches.

Where, on a settlement of mutual accounts, defendant executed to the other party a bond for the balance due, and, during the two years that the other party lived thereafter, no objection was made to the correctness of the settlement, equity will not reform or cancel the bend, in an action thereon by the executor of the obligee, on the ground of mistake in the accounting, unless a full statement of the account can be made, and the mistake clearly appears.

Error to circuit court, Roanoke county; Henry E. Blair, Judge.

Action by the administrator of James S. Persinger, deceased, against F. J. Chapman and another. Judgment for defendants, and plaintiff brings error. Reversed.

L. H. Cocke, for plaintiff in error.

G. W.& L. C. Hansbrough and R. H. Logan, for defendants in error.

CARDWELL, J. This is an action of debt, brought by the personal representative of James S. Persinger, deceased, in the circuit court of Roanoke county, on a bond executed by F. J. Chapman and F. Rorer, his surety, to the plaintiff's testator, in his lifetime, and for the sum of $1,250, bearing date February 13, 1883, and payable six months after date, with interest. At the trial the defendant Chapman tendered his special plea in writing, in the nature of a plea of equitable set-off, the substance of which is that the bond sued on was executed under a mistake, in payment for 24 acres of land in Roanoke county, known as a part of the "Chapman Mill Property, " while in fact, at the date of the execution of the bond, Chapman had fully paid for the same. Upon this plea, Issue was joined, and after all the evidence was submitted the plaintiff demurred to the defendant's evidence; and, both both parties agreeing thereto, the jury were discharged from the further consideration of their verdict, and all matters in issue—both of law and fact—were referred to the court for its decision, and the court overruled the demurrer, and gave judgment for the defendant. To this judgment a writ of error was awarded by a judge of this court

The evidence adduced by the defendant Chapman in support of his plea shows, at the most, that the transaction between him and the plaintiff's testator, who was the defendant's father-in-law, ran over a period of at least 8 or 10 years prior to the execution of the bond, and involved frequent payments of money by the one for the other; that the transactions between them were numerous, and their accounts of them very imperfectly kept, so that any account that may be stated between the parties, especially in view of the death of one of them, must be purely conjectural. The witnesses testified more from impression upon their minds, than from any knowledge they had of the transactions between the parties. Indeed, one of the defendant's witnesses (Ballard) frankly states that the impressions as to which he testifies are gotten from the testimony of another witness, whose deposition was taken in another case and read in this case, and not from anything which he himself knows of the transactions between Chapman and Persinger. It is admitted that the consideration for the bond was the conveyance of the 24 acres of land to the defendant Chapman's wife, and that the deed was executed and acknowledged by Persinger on the day after the bond was executed; and the witness Ballard also testifies that he was present on the 14th of February, 1883, the day after the bond sued on was executed, when a settlement of a general character...