Taylor v. Boughner, Jr., et al.

• Decision Date: 27 March 1880
• Citation: 16 W.Va. 327
• Parties: Taylor v. Boughner, Jr., et al.
• Court: West Virginia Supreme Court

16 W.Va. 327

Taylor

v.Boughner, Jr., et al.

Supreme Court of Appeals of West Virginia.

Decided March 27, 1880.

The party complaining in the Appellate Court of the rejection of evidence by the court below must state the facts or evidence in his bill of exceptions, from which it must appear affirmatively to the Appellate Court, that he was prejudiced by the rejection of the evidence.

Writ of error to a judgment of the circuit court of the county of Ritchie, rendered on the 6th day of May, 1879, in a case in said court then pending, in which James Taylor was plaintiff1, and D. Boughner, Jr., and others were defendants, allowed upon the petition of the said defendants.

Hon. J. M. Jackson, judge of the fifth judicial circuit, rendered the judgment complained of.

Moore, Judge, furnishes the following statement of the case:

This was an action of covenant brought by Taylor against the defendants, in the circuit court of Ritchie county, to recover damages for breach of covenant. The bond was executed by JD. Boughner and others, payable to the defendant in error, bearing date on the 8th day of Decbemer, A. D. 1857, with interest from its date. To this action the plaintiffs in error file their five pleas in writPleas of non est factum, conditions performed, conditions ing, viz: not broken, payment, and usury; and to the account of offsets filed by defendants, with their plea of payment, to the demand of the plaintiff, the plaintiff filed a special replication of the statute of limitations. Thereupon, the cause was continued. At a subsequent term the cause was tried and resulted in a hung jury.

At the April term of the circuit court, held for the county of Ritchie for 1879, the case was regularly called, and it was then ascertained by the plaintiff in the said action, that the papers had been by some means lost or mislaid. Whereupon an affidavit was filed by the defendants in error, setting forth the fact of the loss of the original papers and produced to the court an authenticated copy of the declaration, which describes the writing obligatory, which was the foundation of the action, as follows: "That said James Taylor had agreed to pay $2,500.00, for William M. Patton on the revenue of 1856, the said obligors, the said defendants and the said decedents, bound themselves to pay to said plaintiff the interest on said $2,500.00, until the same is collected according to law by said Taylor on the claims then in the said plaintiff's hands, for which the said William Patton held said Taylor's receipts, and if the said claims should lack anything in repaying the said Taylor the money advanced by him for the said Patton, they by said agreement bound themselves to makeup said amount of lack;" and on motion of the plaintiff it was ordered that the action be proceeded in, heard and determined, upon such authenticated copy of said declaration and proof of the contents of said writing obligatory. And it appearing to the court that the defendant being unable to furnish authenticated copies of their pleas, heretofore filed in the cause, on their motion they were permitted to plead anew. And thereupon, for pleas, say, "that they have not broken the covenants in the writing obligatory in the declaration mentioned, and for further plea the defendants say that they have well and truly paid the sum of money in the declaration mentioned, and with said plea, file specifications of payment and offssts which they desire to prove under the said plea, and, thereupon," the plaintiff filed counter-offsets and two special replications of the defendants offsets, defendants rejoin, issue is thereon joined, likewise the defendants file a plea of non est factum; issue was thereon joined, and also filed a special plea of usury, to the filing of which plaintiff objected, but the plea was permitted to be filed and issue thereon joined.

The jury having heard the evidence, returned the following verdict: "We the jury find for the plaintiff on the issue joined in this cause, and we assess his damages at four thousand two hundred and seventy-seven dollars and thirty-three cents ($4,277.33,) upon which the court entered up judgment for the said amount so found by the jury, with interest from the 6th day of May, 1879, until paid and costs." Motion was made by the defendants to set aside the verdict and grant a new trial, which was overruled. During the progress of the trial, the defendants tendered the following bill of excep ions to a ruling of the court, which was signed, sealed and made a part of the record:

"Be it remembered, That upon the trial of this cause, after the jury had been sworn, and after the plaintiff had offered his evidence-in-chief and rested his case, and after the defendants had offered their evidence-in-chief and rested their case, the plaintiff, to maintain the issues joined, introduced one L. A. Phelps, who was sworn as a witness,...