Freeland v. Cocke's representatives

3 Va. 352

• Court: Supreme Court of Virginia
• Decided: March 17, 1813
• Status: Published

Opinion

the president pronounced the Court’s opinion; “ that the decree of the Superior Court of Chancery is erroneous : therefore. the same is reversed with costs ; and this Court, proceeding, &c. is of opinion, that when a party claims to charge another, by virtue of an account rendered, he must take that account altogether, and not garble or alter it, unless he can surcharge or falsify the same, either by showing errors in calculation, or by showing, fiom other testimony, that it is incorrect, as to the amount charged, or credited; or by showing, in the present case, that there was no agreement, or understanding, that the balances should be turned into tobacco, and then that tobacco turned again into money ; without which, although it makes a material difference in the result, the accounts rendered must, nevertheless, be taken in the manner in which they are stated, where such accounts, alone, are relied on to support the charge.

“ The Court, hbwever, is of opinion, that, as the county Court could have directed the books of Peter5 and of the Flood’s Company, to have been laid before the commissioner, in order to see whether the accounts, when raised., were extended in tobacco, or whether that was an after thought; (in the former of which events, a presumption would arise, that such was the original understanding and intention of the parties, unless proof was exhibited to the contrary ; and, in the latter, that presumption would be done away j and the commissioner’s report, consequently, be justified, or not, according as the fact should turn out;) but if nothing should appear to show that the accounts were expressly extended in tobacco, and that a given sum, in that medium, was due on the 19th of December, 1781 ; yet, as it appears that more tobacco has since been paid than the amount of that debit, with interest, (exclusive of 12/. 5d. paid in money,) the appellees ought to have had an opportunity of showing, that this second change of a tobacco debt into money, was not a mode of settlement agreed on; either by express proof to the contrary; or by proving those payments by other testimony than the ac» count thereof rendered ; so as to oblige the appellants to prove such agreement.

“ The Courtis, therefore, of opinion,that the accounts, rendered and relied on, did not warrant the report of the commissioner in this cause; and that the decree of the said county Court is ab o erroneous; which, therefore, is hereby reversed, with costs . and ¡he cause is remanded to the said Court of Chancery, and from thence to the county Court, with instructions to direct an inquiry to be made, and an account to be taken, agreeably to the above principles, in order to a final decree.