Downer & Co. v. Morrison

2 Va. 250

• Court: Supreme Court of Virginia
• Decided: July 15, 1845
• Status: Published

Opinion

Baldwin, J.

delivered the opinion of the Court.

The Court is of opinion, that the Court below erred in its decision, stated in the plaintiffs’ first bill of exceptions, to wit, in rejecting the account referred to in the deposition of the witness Edwards, and which he deposes to be a true and accurate copy from the books of the firm of Downer & Co. of the original entries of the goods therein charged as sold to Morrison & Foster; that account, so verified, being proper evidence for the consideration of the jury, so far as it tended to repel any intendment or inference from the purchase of said goods by Wilson, and the delivery thereof to him, that he, the said Wilson, had been debited therewith in the books of said Downer & Co., and so far as the debiting of said goods to said Morrison & Foster as aforesaid, might, in the opinion of the jury, from other evidence in the cause, have been expressly or impliedly recognized by the said Morrison & Foster. And the Court is further of opinion, that the Court below erred in' its decisions stated in the plaintiffs’ second arid third bills of exception, to wit, in rejecting the account appended to the deposition of the witness Hewitt, and therein referred to by him, inasmuch as his evidence touching said account, tended to prove the justice of the charges therein made,- and the weight of that evidence was proper for the consideration of the jury. And the Court is further of opinion, that the Court below erred in its decision stated in the plaintiffs’ fourth bill of exceptions, to wit, in rejecting the letter from Downer & Co. to Morrison Foster, of the 7th of November 1834, therein mentioned ; which letter, under the circumstances, and for the purposes stated in that bill of exceptions, was proper evidence for the consideration of the jury. And the Court is further of opinion, that the Court below erred in its decision stated in the plaintiffs’ fifth bill of exceptions, to wit, in admitting as evidence to the jury the record of the suit of Stout & Ingolsby v. Morrison & Foster, in that bill of exceptions mentioned, inasmuch as the said Downer & Co. were neither parties nor privies to that controversy, and the fact of the judgment recovered therein had no legitimate bearing upon the merits of the controversy in the present suit. And consequently, if for no other reason, that said Court erred in admitting evidence of the grounds of said recovery, as stated in the plaintiffs’ sixth bill of exceptions. And the Court is further of opinion, that there is no error in the decision of the Court below, stated in the plaintiffs’ seventh bill of exceptions; nor in any of its decisions, stated in the defendant’s four several bills of exception. And in regard to the decision of the Court below, overruling the plaintiffs’ motion for a new trial, mentioned in the plaintiffs’ eighth bill of exceptions, this Court deems it proper to decline expressing an opinion, inasmuch as a new trial must be directed, because of the errors aforesaid, and by reason of those errors, the merits of the cause were not properly and fully developed on the trial before the jury. It is therefore considered by the Court that the said judgment of the said Circuit Court be reversed and annulled, with costs to the plaintiffs in error, and that the verdict of the jury be set aside, and the cause remanded to the said Circuit Court, for a new trial to be had there of the issue joined between the parties, upon which new trial that Court is to govern itself in relation to the admission and rejection of the evidence above mentioned, by the principles above declared.