Steptoe v. Flood's Adm'r

• Decision Date: 30 January 1879
• Citation: 72 Va. 323
• Parties: STEPTOE v. FLOOD'S adm'r.
• Court: Virginia Supreme Court

72 Va. 323

STEPTOE v. FLOOD'S adm'r.

Supreme Court of Appeals of Virginia.

January 30, 1879

1. On the trial of an issue out of chancery the plaintiff in the issue relies upon a receipt to which there is an attesting witness, but both the witness and the principal are dead. The plaintiff having proved the handwriting of the witness, the defendant may introduce the testimony of witnesses to prove that the name of the principal to the receipt is not in his handwriting.

2. There being great conflict of opinion among the witnesses as to the genuineness of the handwriting of the principal to the receipt, the verdict of the jury against it will not be disturbed.

3. The court will not set aside the verdict of the jury on the certificate or affidavit of two of the jurors, that they thought the receipt proved and ought to be considered; but the other members of the jury insisted that the receipt had nothing to do with the case, and they were persuaded against their judgment to consent to the verdict, and that it is now against their judgment.

4. It is the general rule in ordinary trials that a verdict will not be disturbed upon the affidavits of jurors; and this is so in the case of an issue out of chancery, especially.

The controversy involved in this case has been pending, in a variety of forms, for more than twenty years. It was founded on a check dated December 23, 1854, drawn by W. J. Read on the cashier of the Farmers Bank of Virginia at Lynchburg payable to Quarles & Steptoe, or order, for five hundred dollars. The sad Read claimed to have loaned the said check to the said Quarles & Steptoe, who were partners; and that they were jointly indebted to him in the amount thereof. They having made default in the payment of said claim, and he having transferred the same to Henry D. Flood, on the 12th day of January, 1857, an action of assumpsit was brought in the circuit court of Bedford county in the name of said Read plaintiff, for the benefit of said Flood, against the said Quarles & Steptoe, defendants, to recover the amount of the said check. On the 29th day of April, 1857, the defendants plead non-assumpserant to the action, to which the plaintiff replied generally, and the trial of the issue thus joined was deferred until the next term. On the 28th day of April, 1860, the said issue was tried by a jury which found a verdict for the plaintiff, and assessed his damages at five hundred dollars, with interest from the 23d of December, 1854, and judgment was thereupon rendered in favor of the plaintiff against the defendants for the said sum of five hundred dollars with legal interest thereon from the said 23d day of December, 1854, till payment, and his costs by him about his suit in this behalf expended.

Upon the trial of the cause the defendant Steptoe tendered three several bills of exceptions to opinions of the court, which bills were made a part of the record in the cause, and were to the effect following, to-wit:

In the first bill it is in substance stated, that when the cause was called for trial the defendant Steptoe moved the court for leave to withdraw the joint plea of both defendants (the defendant Quarles making no objection thereto) and to file his separate plea " that the said defendants did not assume upon themselves in manner and form as said plaintiff hath in his declaration alleged, and of this he puts himself upon the country" ; the counsel for the defendant Steptoe stating that the defence relied on was, that the demand in controversy was the individual liability of said Quarles, and not of the firm of Quarles & Steptoe, and that he wished to introduce said Quarles as a witness to prove this defence, and for that reason he wished to plead separately for Steptoe; and the court refused to permit the joint plea to be withdrawn and the above plea to be filed and then said defendant asked leave to file said plea in addition to that heretofore filed; which the court refused. And to the said action of the court the defendant Steptoe excepted.

In the second bill it is in substance stated that " upon the trial of the cause the plaintiff offered to read in evidence the deposition of N. H. Campbell in the following words and figures, to-wit:" Then follows the said deposition as taken by Joseph C. Lawrence, a commissioner for the state of Virginia, at his office, in the city of New York, in the state of New York, on the 23d of April, 1858, in which deposition are the following questions, propounded by the plaintiff to the witness, and the following answers thereto:

" Question. Examine the accompanying account and protested check and state what you know of them?

Answer. I have examined the account and protested check referred to in the question, and for their identification as the papers before me I have marked the protest 2, and the account S. I recognized the protested check as a paper which was placed in my hands as an attorney by William J. Read, the plaintiff, as evidence of the amount of a debt claimed by him of the defendants. The account I also recognize as a paper exhibiting the result and items of a settlement had in my presence, as hereinafter stated, between the plaintiff and the defendant, Quarles, of individual transactions theretofore had between them.

Question. State whether you presented the check as evidence of Read's claim against Quarles & Steptoe, what took place at the time, and what was said by Quarles, what by Steptoe?

Answer. I did exhibit the check and protest to each of the defendants, stating the plaintiff's claim; that it had been loaned to them, and that he, having paid the same, was entitled to recover the amount so paid back from them. Quarles, whom I spoke to several times on the subject uniformly admitted the statement on which the claim was based to be correct and just, as often declared that it should be paid. I also presented the claim to the defendant Steptoe along with an account for a small sum purporting to be due from the defendants to the plaintiff. On looking over the papers, Steptoe said he would pay the account, but the amount of the check was to be taken care of by Quarles; and that Quarles said there were unsettled individual accounts between Read and himself, upon an adjustment of which this sum would be included and settled; think the plaintiff was standing near enough to us for me to call to him and repeat the substance of what Steptoe had said. The plaintiff, in reply, stated to both Steptoe and myself that upon a settlement of individual matters between Quarles and himself that Quarles would fall considerably in his debt. I then remarked to Steptoe that Quarles admitted the check to have been loaned to Quarles & Steptoe by the plaintiff; and that upon that admission I thought it could be recovered at law, and if so it would be better to settle it without suit. He dissented from me, but finally said he would again see Quarles in regard to it. He did so, and in a short time afterwards told me that he should not pay the claim. About the time that Steptoe told me his final determination not to pay it, Quarles came out and told the plaintiff he had better not press the matter further then, as it should all be made all right. Everything in the foregoing answer relating to the interview with Steptoe occurred in the street in Liberty, near the hotel."

There are other questions and answers in the deposition, but they need not be repeated here.

To the reading of the said deposition the defendant Steptoe objected, because it was taken without any commission, both because the paper purporting to be a commission was not signed by the clerk; and also because the commissioner who took it did not certify it was taken in pursuance of any commission, & c. The clerk and deputy clerk were also examined in regard to the commission and deposition; and thereupon the court permitted the deposition to be read as evidence upon the trial of the suit; to which action of the court the defendant Steptoe excepted.

In the third bill it is, in substance, stated that after the jury were sworn the defendant Steptoe offered to introduce the said Quarles as a witness to prove that the demand sued for was the individual debt of said Quarles, and that there was no liability of said Steptoe therefor, to which the plaintiff objected; and thereupon said Quarles offered to withdraw the plea, so far as related to himself, theretofore pleaded, but the court refused to permit him to do so; and then leave was asked to permit said Quarles to acknowledge the plaintiff's action to enable him to testify for said Steptoe, which the court refused to permit said Quarles to do; and the defendant Steptoe again offered said Quarles as a witness, the counsel for the defendants stating that Quarles was making no defence, and that the proof they offered applied wholly to said Steptoe, but the court again refused to permit said Quarles to testify. To all of which acts of the court in this bill mentioned the defendant Steptoe excepted.

On the said judgment an execution was issued and levied on the property of said Steptoe, who gave a forthcoming bond, on which there was a judgment and award of execution, which execution was issued, but had not been returned on the 14th of December, 1860, when a copy was made of the said record; which was no doubt intended to be the foundation of an application for a writ of supersedeas to said judgment.

About the date last mentioned, the said Steptoe accordingly applied to a judge of this court for a writ of supersedeas as aforesaid, which was accordingly awarded, to-wit: in December, 1860, and the case was depending in this court from that time until the 27th of October, 1868, when the said judgment was unanimously affirmed by the court, as may be seen by reference to the...