Good v. Dyer

119 S.E. 277, 137 Va. 114, 1923 Va. LEXIS 142

• Court: Supreme Court of Virginia
• Decided: September 20, 1923
• Status: Published

Opinion

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The questions raised by the assignments of error will be disposed of in their order, as stated below.

1. Was there harmful error in the action of the court in refusing to permit the defendant (after he had already testified, in substance, that if the note was a-debt binding on the estate of the decedent, it and the legacies and other charges on the estate would more than consume it, leaving nothing to pass under the residuary clause of the will), to testify more specifically on this subject, by stating what the gross amount of the estate was as inventoried and to repeat what he had already stated, as aforesaid, on the subject?

The question must be answered in the negative.

The court should have permitted the testimony in question to have been introduced. But, as the substance of this testimony was already before the jury, and as we do not find from the record that there was any controversy before the jury over the fact that, if the note sued on is paid out of the estate, there will be nothing left to pass under the residuary clause of the will, it seems apparent that this circumstance was taken into consideration by the jury. We think, therefore, that the error was harmless.

2. Did the court err in refusing to permit the memorandum of figures from the bank to be introduced in evidence?

This evidence was sought to be introduced as tending to show that $30.00 board for the month of January, 1922 (being the rate of monthly board the decedent paid the plaintiff prior to the date of the note sued on), was paid to the plaintiff by the decedent after the note sued on was given. But there are four of the items of $15.00 checks paid in January, 1922, which appear on this statement, and there is nothing on the statement to show the dates the cheeks were given or for what the checks were given; merely the amounts of the checks and the dates of their payment by the bank. So that it is evident that this memorandum could have had no probative value before the jury, and was more likely to mislead than to have been helpful to them.

3. Did the court commit harmful error in giving instruction (1) as offered by the plaintiff?

The correct rule on the subject of the burden of proof in actions upon negotiable notes is laid down in 3 R. C. L., sec. 124, pp. 928-9, as follows: “There seems to be no doubt * * * but that the burden of proof is upon the plaintiff to establish the fact that the instrument was given for a valuable consideration. While the production of the note, with the admission or proof of the signature makes a prima facie case, and upon the evidence of the instrument itself the plaintiff is entitled to a verdict, unless there is some other evidence to affect it; yet, when consideration is denied in the answer, then an issue is made upon that point, on which the plaintiff has the-affirmative; and the presumption being prima facie only and not conclusive, the burden of proof necessarily rests upon the plaintiff to show a consideration by a preponderance of the whole evidence given on the trial of the issue. There being other evidence on both sides, which has a bearing upon the question of consideration, the burden remains upon the plaintiff upon all the evidence produced, including the note itself and the presumption that arises from it, to establish what he, in the declaration in his writ, has necessarily alleged. The weight of the evidence, or, as it is otherwise expressed, the preponderance of the evidence, may vary from side to side as a trial progresses; but the burden, which rests upon the plaintiff to establish the material averments of his cause of action by the preponderance of all .the evidence never shifts. The party who maintains the affirmative of an issue carries the burden of proof through the whole ease, although he may be aided by such rebuttable presumptions of law, or such facts, as would prima facie support his contention. His opponents need do no more than counter-balance the presumption or the prima facie case. * * * In many of the cases it is not apparent from the opinions whether the courts used the term ‘burden of proof’ in its strict and technical sense, or in the more common, but inaccurate, use of the phrase, meaning no more than that it would be incumbent on a defendant to offer evidence to impeach and nullify the effect of the plaintiff’s prima facie case.” (Italics supplied.) See to same effect, with respect to civil and criminal cases, 8 C. J. 994-6; 1 Daniel on Neg. Inst. (6th ed.), sec. 164, pp. 219-221; Tidewater Stevedore Co. v. Lindsay, 136 Va. 88, 116 S. E. 377, and cases therein cited; and Covington’s Case, 136 Va. 665, 116 S. E. 462, and cases therein cited.

It is apparent, however, from the reading of instruction (1), given at the instance of the plaintiff, that it is addressed solely to that stage of the trial when the plaintiff had introduced no other evidence than the note and the proof of the signature, and the defendant had introduced all of his evidence, and under this instruction the jury were to consider, first, whether the prima facie ease made for the plaintiff by the note itself on the question of the existence of a valuable consideration to support it, as well as upon the other questions in the case, had been rebutted, that is, counterbalanced; and if they found from the evidence that the defendant had not done this, the jury need inquire no further, as the plaintiff was entitled to their verdict upon the prima facie case made by the note. That this was the meaning of this instruction is set beyond doubt by instruction No. 1, given as asked by the defendant.

There was no error in so instructing the jury.

It is true, as stated in the opinion of the learned trial judge, which appears in the record, that instruction (1) “is inartificially drawn, that part of it which speaks of ‘mere inference or conjectures’ is obscure, and that the clause which requires the defendant to rebut the prima facie case ‘to the satisfaction of the jury’ is too strong, but the first and chief part of the instruction correctly states the law.” The further statement, however, of the trial judge is made in his opinion, that he “did not believe the jury were misled by this instruction,” and in this belief we concur.

As we have repeatedly held, a verdict will not be set aside because some of the expressions in an instruction, standing alone, might be regarded as erroneous and misleading, if the instruction as a whole presents the law fairly and correctly and in a manner not likely to mislead the jury. Kimball v. Borden, 97 Va. 477, 34 S. E. 45. See also Miller v. Newport News, 101 Va. 432, 44 S. E. 712, and Gray’s Case, 92 Va. 772, 22 S. E. 858, with respect to the instructions taken as a whole.

4. Was instruction (2) given for the plaintiff erroneous?

The question must be answered in the negative.

The assignments of error assail this instruction on two grounds; first, because it is predicated upon a failure of consideration, rather than a want of consideration, and secondly, because it assumes the_ existence of the contract testified to by the plaintiff and disregards the issue before the jury as to the signature of the decedent having been obtained by the'exercise of undue influence over him by the plaintiff.

In regard to the first point, we deem it sufficient to say that the same reference to “failure of consideration” as synonymous with “want of consideration” appears in the second paragraph of instruction No. 2, offered by the defendant, which was refused by the court. We think, therefore, that the defendant is estopped by the doctrine of invited error from complaining of this inaccuracy in form of phraseology. Louisa County v. Yancey's Trustee, 109 Va. 229, 63 S. E. 452; Levy v. Davis, 115 Va. 814, 80 S. E. 791. Moreover, we think it is obvious, under the circumstances shown in evidence, that the jury were not misled to the prejudice of the defendant, by the instruction, so far as the phraseology just mentioned is concerned.

In regard to the second point, this will be said: Whether the signature of the decedent was obtained by the exercise of undue influence over him by the plaintiff depended, as appeared from all of the evidence in this case, upon whether the decedent was of sound mind at the time the note was given. This question the instruction under consideration left to the jury. Hence the instruction is not open to the aforesaid second objection made, to it.

• We will add that the evidence was all one way with respect to the soundness of mind of the decedent at the time the note was given, and, indeed, at all times before and after that time—even the testimony of and for the defendant being to the effect that the decedent was a man of an exceptionally sound mind and of unusual firmness and decision of character. So that in ho aspect of it do we feel that the jury could have been misled by the instruction in question.

5. Was instruction (3) given for the plaintiff erroneous?

The objection urged against this instruction, in the assignments of error, is that it disregards the defense of undue influence and directs a verdict upon a partial view of the evidence upon that issue. The instruction expressly states, in substance, that the jury were to find for the plaintiff only if they should “believe from the evidence that M. H. Earman (the decedent), with his mental faculties clear, entered into the contract as aforesaid.”

Moreover, the instruction is correct in its statement that “no quantum meruit is involved in this suit.” The note, a contract in writing, expressed on its face an absolute and unconditional obligation to pay the amount stipulated therein for the consideration therefor (which the parol evidence in behalf of both parties disclosed had none of it been furnished at the time the note was given, but was all to be afterwards furnished). The note contained in itself the complete contract as to the amount which was to be paid by the mater of the note for the consideration therefor. Therefore, when the consideration contracted for was furnished, if it was (which the instructions as a whole left for the jury to determine from the evidence), and it was of some value (as it admittedly was in the instant ease), it is elementary that the value of the consideration was irrevocably fixed by the note itself. Parol evidence was inadmissible to change the written contract in that particular. 3 R. C. L. sec. 127, p. 932; Idem, sec. 132, p. 936; Idem, sec. 139, p. 948. As said in section 127 of the learned work just cited: “Whether the consideration received is equal in value to the sum promised to be paid, seems not to be material to the validity of a note. In other words, mere inadequacy of consideration is not sufficient to defeat a promise. It is sufficient that the consideration is of some value, and the law will not enter into an inquiry as to the adequacy of the consideration for a promise, but will leave the parties to be the sole judges of the benefits to be derived therefrom, unless the inadequacy of the consideration is so gross as of itself to prove fraud or imposition. * * * Any act done by the promisee at the request of the promisor, however trifling the loss to himself or the benefit to the promisor, is a sufficient consideration for a promise made without fraud and with full knowledge of all the circumstances.” And, as said in section 139 of the same volume of the valuable work just cited: “Where parties have deliberately put their contract in writing, complete in itself and couched in such language as imports a complete legal obligation, parol evidence is not admissible to introduce a term not contained in the writing. The only criterion of completeness is the writing itself. It cannot be proved incomplete by showing an oral stipulation” (meaning a prior or eotemporaneous oral stipulation) “outside the writing. Again the principle is well established that a negotiable instrument which expresses on its face an absolute promise to pay cannot be cut down into a conditional promise by a contemporaneous parol agreement.”

It is true, as the section of the work last quoted proceeds to set forth, that “* * * the rule that parol evidence is not admissible to contradict or vary an absolute engagement to pay money on the face of the bill or note, does not exclude evidence as between the original parties showing a total or partial failure of consideration.” And the negotiable instruments law, sec. 28, (Code, sec. 5590) provides as follows: ‘‘Absence or failure of consideration is matter of defense as against any person not a holder in due course, and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.” Further, the decisions are almost innumerable (too numerous to admit of their review in this opinion), and not always reconcilable, involving the much debated subject of what parol evidence is admissible upon the inquiry whethertherehasbeenatotalor partial failure of consideration to support a negotiable note. But we think upon principle and in accordance with the great weight of authority, that in the absence of fraud and undue influence, parol evidence is never.admissible in an action at law upon a note, to fix a value upon the consideration different from the sum promised to be paid therefor as stipulated in the note, where the consideration is of some value. In other words, in such case, parol evidence is inadmissible to change the written contract in that particular. Parol evidence cannot, in such case, be considered so as to fix a different value upon the consideration from that fixed by the note, but must be confined to the subject of whether the consideration contracted for is wholly or partially absent, or has wholly or partially failed, as the case may be.

6. Did the court err in refusing' to give the second paragraph of instruction No. 2 offered by the defendant?

Upon the evidence in this case there was, in truth, no question before the jury as to whether there was a partial absence or partial failure of consideration. Touching the consideration for the note, there were but two questions before the jury, first, what was the consideration which was contracted for, and, secondly, whether the consideration was furnished by the plaintiff in accordance with the contract. The theory of the defendant, on which the refused portion of the restriction in question was based, was predicated upon the initial assumption that the parol evidence introduced by the defendant was admissible to show that the maker of the note did not promise to pay the amount stipulated in the note to be paid for the consideration for the note, but made a different contract, namely, to pay only the actual value of such consideration in the event that it was less than the amount stipulated in the note. In this way only could this theory present the contention that there had been a partial failure of consideration, to-wit, to the extent that the actual value of the consideration furnished by the plaintiff fell short of the amount promised to be paid by the note. The effect of this would have been to have “cut down into a conditional promise by a contemporaneous parol agreement” the absolute promise contained in the note to pay the amount stipulated therein for the consideration. As we have stated above, this could not lawfully be done, because the parol evidence was inadmissible for that purpose. What the court did in refusing the portion of the instruction in question was, in substance, to exclude from the jury the testimony for the defendant tending to show such a parol agreement. For the reasons above stated, in considering the question next preceding that at present before us, we think the court committed no error in so doing.

7. Did the court err in refusing to give instruction No. 5 asked for by the defendant?

While stating a correct abstract principle of law, the instruction was too abstract to have been of any practical help to the jury in considering the evidence in this case, and, most probably, would have tended to mislead them. Instruction No. 4, asked for by defendant, as modified and given, covered the same subject fully and in a measure more specific and hence more helpful to the jury. And the petition waives any objection to the modification made of the latter instruction as asked.

The only question presented by the assignments of error remaining for our determination is the following:

8. Did the court err in refusing to set aside the verdict and in entering judgment thereon for the plaintiff?

This question must be answered in the negative.

There are two positions taken in the assignments of error and in argument for the defendant on the question under consideration: First, that the judgment under review was founded on the uncorroborated testimony of the plaintiff, contrary to the provisions of section 6209 of the Code; and, secondly, that the verdict was contrary to the law and the evidence, in that the testimony of the plaintiff is so unreasonable and so inconsistent with her course of conduct and previous statements to several witnesses, that, to say the least, it is not convincing and casts suspicion upon the validity of the note sued on.

With regard to the first point, this will be said:

It is true that the plaintiff did not rely solely upon the prima facie presumption of consideration arising from the note itself; and it is also true that, as above set forth, the burden of proof rested upon the plaintiff to establish, by a preponderance of the evidence, that the particular consideration set up in her testimony was the consideration contracted for and was furnished by her accordingly; still, as above set forth, the whole evidence included “the note itself and the presumption that arises from it.” The particular consideration asserted by the plaintiff was in entire accord with the presumption of consideration arising from the note. The plain.tiff was therefore aided in carrying her burden of proof by such presumption. Moreover, the testimony of and for the defendant, showing the soundness of mind and the exceptional independence and firmness of character of the decedent, further corroborated the testimony of the plaintiff. Hence, we think that the judgment cannot be said to have been founded upon the uncorroborated testimony of the plaintiff; so that the statute mentioned has no application.

With regard to the second point, this only need be said:

As appears from what we have said above, the verdict was not contrary to law. The evidence was conflicting, but there was nothing inherently incredible in the testimony of and for the plaintiff; the credibility and weight to be given the conflicting testimony of the witnesses was for the jury; there was ample evidence to support the verdict if the jury believed the testimony of and for plaintiff, rather than that of other witnesses in conflict therewith. Hence, we cannot say that the verdict was contrary to the evidence.

The ease must, therefore, be affirmed.

Affirmed.