Bowyer v. Martin & Carraway

27 Va. 525, 6 Rand. 525, 1828 Va. LEXIS 31

Opinion

The Court delivered its opinion.

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Judge Cabell.

It was not competent to the Superior Court, to give any Judgment on the merits of the case depending on the title of the parties, since the proceedings presented no such question to the Court. The verdict was a general one, and the only question, presented by the Record for the consideration of the Superior Court, was, whether the Court of the Justices improperly refused to give the instruction that was asked for, or gave an improper instruction.

Where there is a latent ambiguity in a written instrument, it may be explained by parol testimony: or, where the terms used in a written agreement have not a definite legal signification the custom of the trade, or the acts of the parties, may be resorted to, for the construction of them. But, the agreement in this case, (if that which is copied into the Record be the one referred to in the Bill of Exceptions,) contains no ambiguity whatever, nor is there a word which has not a definite legal signification. It was therefore, right in the Court of the Justices, to refuse the instruction which was asked for, and the instruction which was given, was likewise correct.

The Judgment of the Superior Court is reversed, and that of, the Justices affirmed, with a direction to the Superior Court, to award a Writ of Re-restitution, if the Writ of Restitution awarded by that Court has been executed.

Judge Green and the President concurred.

Absent, Judges Coaiteu and Caub..