Powell v. Tarry's Adm'r

• Decision Date: 15 March 1883
• Citation: 77 Va. 250
• Court: Virginia Supreme Court
• Parties: POWELL, WHO SUES FOR, & C. v. TARRY'S ADM'R.

77 Va. 250

POWELL, WHO SUES FOR, & C. v. TARRY'S ADM'R.

Supreme Court of Appeals of Virginia.

March 15, 1883

Error to judgment of circuit court of Mecklenburg, rendered 29th May, 1880, in an action of trespass on the case in which Jesse H. Powell, who sued for the benefit of E. T. Hamilton was plaintiff, and W. E. Homes, administrator with the will annexed of George Tarry, Jr., deceased, was defendant. Testator, in his lifetime, held the bond of Henry Duncan for $5,000, payable to himself as guardian, two years after date with interest at the rate of ten per cent per annum, till paid. He endorsed his name on the bond, and it passed to said Powell, who received on it, as proceeds of land conveyed to secure it, $3,744. Suit was not brought on it for the balance, on account of the alleged notorious insolvency of the obligor, but this action was instituted to recourse therefor on the assignor's estate. Judgment for the defendant was rendered on 25th May, 1880. During same term on 29th, there was entered the following order:

This day came again the parties by their attorneys, and the plaintiff having excepted to the opinion of the court given on the trial of this cause, tendered his several bills of exceptions, which are received, signed and sealed by the court, and ordered to be made part of the record in this case; and on motion of the plaintiff, the judgment given against him in this case is suspended for the space of sixty days, in order to enable him to apply for a supersedeas to the judgment of this court.

BILL OF EXCEPTION NO. 1.

Be it remembered, that upon the trial of this cause, both plaintiff and defendant asked for certain instructions, but the court refused to give the instructions asked for by plaintiff and defendant, and refused to give the two asked for by plaintiff hereinafter referred to, but instructed the jury as follows:

1. If the jury believe fro the evidence that the intestate, George Tarry, Jr., wrote his name on the back of the bond in the declaration mentioned, intending thereby to assign the same to Jesse Powell, he became thereby liable for the payment of so much of the said bond as could not be made out of the obligor, Henry Duncan, by the exercise of due diligence unless he was released from such liability by some agreement with the holder of the bond, intended to discharge him from such liability. But the mere writing of the name of George Tarry, Jr., on the back of the bond, unaccompanied with any evidence as to the object and motive for writing his name thereon, is not of itself sufficient to make it an assignment binding George Tarry, Jr., as assignor, unless it be shown by evidence or necessary implication that such endorsement was intended and accepted to operate as an assignment.

2. If the jury believe from the evidence, that neither the plaintiff, Hamilton, since he became the holder of the bond in the declaration mentioned, nor Jesse Powell, before he transferred the same to Hamilton, have used due diligence to collect the same by instituting suit thereon against the obligor, Henry Duncan, and prosecuting the same to judgment and execution, they must find for the defendant, unless the plaintiff shall show, to the satisfaction of the jury, that at the time the said bond became due, Duncan was insolvent so that suit against him, prosecuted with due diligence to judgment and execution, would have been unavailing, and that Tarry has not suffered any loss or injury by want of such due diligence on the part of the assignee, Powell, and the burden of showing this rests upon the plaintiff, and not the defendant.

3. If the jury believe from the evidence, that at the time the bond became due H. Duncan was in doubtful circumstances, though not insolvent, so that suit against him on the bond, prosecuted with due diligence to judgment and execution, would not have been unavailing, then it was the duty of the assignee, Powell, or the holder of the bond, to proceed with promptness to prosecute suit on said bond with due diligence to judgment and execution, and if he has failed thus to do, then the jury must find for the defendant.

4. Before the jury can find for the plaintiff, they must believe from the evidence, that at the time the bond fell due Duncan was insolvent, so that suit against him on said bond, prosecuted with due diligence to judgment and execution, would have been unavailing for the purpose of making the money; and they must also believe from the evidence, that Tarry, or his estate, has not suffered any loss or injury by the failure of Powell or Hamilton to use due diligence to collect of Duncan the bond by judgment and execution.

5. If the jury believe from the evidence, that at the maturity of the bond Duncan was a resident of this state, but afterwards removed therefrom to another state, being possessed of property which he carried away with him, known to the assignee, Powell, or which he could have known by the exercise of reasonable diligence, though the assignee might not have been under any legal obligation to pursue said Duncan and institute suit on said bond and prosecute it to judgment and execution in the state to which he had removed; yet, upon such removal from this state, it was the duty of the holder of the bond in question (if he did not intend to pursue Duncan) immediately to have demanded of Tarry, the assignor, any balance remaining uncollected on said bond, with an offer to return the bond, so that the assignor might take steps to recover from the said Duncan the amount due. And that if the assignee has never thus acted, but has continued to hold the bond, they must find for the defendant.

6. If the jury believe from the evidence, that the assignee, Jesse Powell, agreed with Thomas F. Goode, trustee, in the deed of trust of the 4th March, 1872, from Henry Duncan and wife, conveying a tract of land to secure the debt in the declaration mentioned, that if he, Goode, would accept his, Powell's, bid of $4,000 for the said land and convey the same to him, at said bid, that he, Powell, would accept said land in full satisfaction of all claim under the bond in the declaration mentioned against George Tarry, Jr., and that the said Goode would not have sold and conveyed the said land at the bid of $4,000 without such agreement, and that upon this understanding and agreement between Goode, trustee, and Powell, the said land was conveyed by Goode, trustee, to Powell, then they must find for the defendant. Such an agreement to be binding on Powell or his privies, must be sustained by some valuable consideration to him, Powell, and if he acquired the said land by reason of said agreement for a less sum than he could have obtained it for, that was a consideration sufficient to sustain such agreement.

At the same term of the court, on the second day after the rendering of the verdict by the jury, and entering up of the judgment of the court thereof, the plaintiff moved the court to set aside the judgment and verdict and grant him a new trial, on the ground that the court had misdirected the jury by its instructions, and the court refused to set aside the judgment, and overruled the motion for a new trial, to which opinion of the court the plaintiff excepted, and prays that this, his first bill of exception, be signed, sealed, and made a part of the record in this cause, which is accordingly done.

BILL OF EXCEPTION NO. 2.

Be it remembered, that upon the trial of this cause the defendant to sustain the issue on his part offered in evidence a letter dated 30th August, 1875, from E. T. Hamilton, written to George Tarry, Jr., which is in the following words and figures, to-wit:

My Dear Uncle: --Your letter of 21st instant received Saturday, I hasten to reply. I do not know how Mr. Marrow received his information, I do not think from myself. Before Mr. Powell gave me the land, I made some enquiry of Finch & Harris to know could I recover the balance, but told them (Mr. Harris) that I would take no steps, thinking it not just. You may rest assured that I will never trouble you about the matter. You mentioned that Mr. P. could have sold the land had he required a less part payment. I think he certainly asked a small enough proportion. No doubt there were some who were ready to pick a good bargain from that land, but Mr. Powell in selling sold for my interest, not that of any other person who would have bid. Would be glad to have you visit us. Fannie will go to see her father's family on next Friday. I reckon mamma is in Williamsboro'.

Yours, very affectionately,

E. T. HAMILTON.

To the introduction of this letter the plaintiff's counsel objected, on the ground that the letter purported to have been written before he, the said E. T. Hamilton, had any interest in the said bond of Henry Duncan for the sum of $5,000, but the court overruled the plaintiff's objection, and suffered the letter to be read to the jury as part of the evidence in this case, and to this opinion of the court, overruling said objection, the plaintiff by counsel excepts, and prays that this, his second bill of exception, be signed, sealed, and made a part of the record in this cause, which is accordingly done.

BILL OF EXCEPTION NO. 3.

Be it remembered, that upon the trial of this cause the plaintiff by counsel moved the court to instruct the jury as follows, to-wit:

If the jury shall believe from the evidence that at the time E. T. Hamilton wrote the letter to George Tarry, Jr., which was introduced as evidence for the defendant in this cause, he, the said Hamilton, did not own the bond, which is the subject of this suit, then they must disregard said letter in making up their verdict. This instruction asked for by plaintiff and refused.

Which motion the court overruled, to which opinion of...