Hinton, J.,
delivered the opinion of the court:
Upon the former appeal in this case, which will be found reported in Va. Law Journal for 1881, at p. 652, under the style of Snouffer v. Hansbrough, Judge Christian, in delivering the opinion of this court, said : “ The bill charges fraud and misrepresentation. The answer, which to this extent is directly responsive, explicitly denies those charges. If we look to the evidence of the complainants alone, the charge of fraud and misrepresentation is clearly made out. On the other hand, if we look to the evidence of the defendants (independent of the answer as evidence), the transaction will appear to be fair, and free from all fraud and misrepresentation. On all the material facts the evidence is contradictory and conflicting to the last degree. The decision of the case, therefore, depends almost entirely on the credibility [177]*177of the witnesses. If full credit he given to the complainant’s witnesses his case is clearly made out; if, on the other hand, full credit is given to the defendant’s witnesses the defence is clearly established.”
The learned judge thereupon proceeds to reverse and remand the cause to the lower court, with instructions to award the issues directed by this court in its decree. And the propriety of this action, as we have heretofore repeatedly held, cannot be questioned or inquired into upon this appeal. Upon the general question, however, as to when an issue out of chancery should be awarded the following cases may be consulted. Smith v. Betty, 11 Gratt. 753; Mettert v. Hagan, 18 Gratt. 231; Beverley v. Walden, 20 Gratt. 157; Magill v. Manson, 20 Gratt. 527; Powell & Wife v. Manson, 22 Gratt. 177.
The issues directed to be tried by a jury were:
1st. “ Whether the plaintiff, John B. Snouffer, was induced to purchase the land, in the bill and proceedings mentioned, in consequence of any fraud or misrepresentation of the defendant, Hiram Hansbrough, or his agent, as to the boundaries of said land.
2d. “If so induced, what damages has the plaintiff sustained in consequence of such fraud or misrepresentation; on the trial of which issues the said Snouffer shall be plaintiff and the said Hansbrough defendant, and the former shall have the right to open and conclude.”
A verdict was found for the defendant upon both issues, and the chancellor having decreed in accordance therewith, this appeal was thereupon allowed.
In cases of this character, where there is an utterly irreconcilable conflict between the testimony of the plaintiff and defendant; where the proper solution of the controversy depends upon the credibility of the witnesses ; where the cause has been remanded solely with the view to obtain the opinion of the jury as to some paramount fact necessary to be ascertained before a [178]*178decree in accordance with the justice of the case and the rights of the parties can be rendered; and where the verdict which has been found has received the sanction and approval of the trial court, the appellate court will sustain the decree, unless it can see from the record that something was done, or omitted to be done, on the trial which might have improperly influenced the jury in arriving at the verdict, or at least that it is doubtful whether, under the facts of the particular case, such a verdict should have been rendered at all. In every such case it would not only be manifestly unjust to the individual, but at war with a wise and salutary course of legal procedure to send the case back and to subject the party prevailing to the hazard and uncertainty of another trial, unless it should be apparent to the court, from the record, that there had been at least a probable miscarriage of justice, owing to some illegal advantage which he may have obtained on the trial. In Powell and Wife v. Manson, 22 Gratt. 177, Judge Staples, delivering the unanimous opinion of the court, said: “The bill of exceptions * * * states all the oral evidence adduced at the'trial. This court, having before it this evidence, all the depositions and exhibits read at the hearing, is competent to decide whether the purposes of justice require another trial to be had. The rule in such cases is well settled. The court will consider not merely whether the evidence adduced before the jury warrants the verdict, but also whether, having regard to the whole case, further investigation is necessary to attain the ends of justice. And although there may have been a misdirection, or evidence may have been improperly rejected, it will not grant a new trial if the verdict appears to be right upon a consideration of all the evidence, including that which was rejected. 2 Dan. Ch. Pr., new edition, page 1124, and cases there cited.” With these observations, and without stopping to comment upon the objections made by the appellant in his petition to the refusal to exclude the answers to certain questions, and the rejection of the answers to certain others, [179]*179upon which no reliance was placed at the bar, and which are obviously untenable, I come to the next exception of the appellant, which is that the testimony of the witnesses, James E. Thompson and others, relative to the price and value of the land at the time of the sale and since, as set forth in the plaintiff’s second bill of exceptions, was improperly admitted. And this, too, I shall dismiss with this single remark: that as that testimony admittedly sheds some light upon the actual value of the land, and, therefore, to a certain extent tends to negative the idea that imposition was practiced upon the plaintiff, it was relevant, and was, therefore, properly admitted. This brings me to a consideration of the main grounds upon which the application for the reversal of the cause was rested.
And in the first place, it is argued for the appellant that the court erred in giving the first instruction asked for by the defendant, which asserts in effect the proposition that the plaintiff must be held to have had notice from the written contract of sale and the title papers therein referred to, that the tract of land purchased by him of the defendant included 135 acres of mountain land. How, conceding, argumenti gratia, that this instruction was not directly germane to the issue prescribed by this court, and might, therefore, have been well refused, yet it by no-means follows that the decree must be reversed on that account. The fundamental inquiry, to which the jury had been locked up and confined by the decree of this court, was whether the plaintiff had been induced to purchase the tract of land, known as “Belle Grove,” in consequence of the fraud or misrepresentation of the defendant, Hiram Hansbrough, or his agent, as to any one or all of the boundaries of said tract. And the answer to that inquiry was plainly dependent, as the opinion of this court shows, upon the credit which the jury should attach to the witnesses on the respective sides. Under these circumstances this instruction was probably regarded by the jury as beside the mark, and certainly could not have had any appreciable weight [180]*180in moulding their verdict. It would, therefore, constitute no ground for a reversal of a judgment at law, see Colvin v. Menefee, 11 Gratt. 87; Kincheloe v. Tracewell, Id. 589; Bell v. Alexander, 21 Gratt. 1, and therefore certainly ought not to he held to be a cause for the reversal of the decree here. Powell and Wife v.
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Hinton, J.,
delivered the opinion of the court:
Upon the former appeal in this case, which will be found reported in Va. Law Journal for 1881, at p. 652, under the style of Snouffer v. Hansbrough, Judge Christian, in delivering the opinion of this court, said : “ The bill charges fraud and misrepresentation. The answer, which to this extent is directly responsive, explicitly denies those charges. If we look to the evidence of the complainants alone, the charge of fraud and misrepresentation is clearly made out. On the other hand, if we look to the evidence of the defendants (independent of the answer as evidence), the transaction will appear to be fair, and free from all fraud and misrepresentation. On all the material facts the evidence is contradictory and conflicting to the last degree. The decision of the case, therefore, depends almost entirely on the credibility [177]*177of the witnesses. If full credit he given to the complainant’s witnesses his case is clearly made out; if, on the other hand, full credit is given to the defendant’s witnesses the defence is clearly established.”
The learned judge thereupon proceeds to reverse and remand the cause to the lower court, with instructions to award the issues directed by this court in its decree. And the propriety of this action, as we have heretofore repeatedly held, cannot be questioned or inquired into upon this appeal. Upon the general question, however, as to when an issue out of chancery should be awarded the following cases may be consulted. Smith v. Betty, 11 Gratt. 753; Mettert v. Hagan, 18 Gratt. 231; Beverley v. Walden, 20 Gratt. 157; Magill v. Manson, 20 Gratt. 527; Powell & Wife v. Manson, 22 Gratt. 177.
The issues directed to be tried by a jury were:
1st. “ Whether the plaintiff, John B. Snouffer, was induced to purchase the land, in the bill and proceedings mentioned, in consequence of any fraud or misrepresentation of the defendant, Hiram Hansbrough, or his agent, as to the boundaries of said land.
2d. “If so induced, what damages has the plaintiff sustained in consequence of such fraud or misrepresentation; on the trial of which issues the said Snouffer shall be plaintiff and the said Hansbrough defendant, and the former shall have the right to open and conclude.”
A verdict was found for the defendant upon both issues, and the chancellor having decreed in accordance therewith, this appeal was thereupon allowed.
In cases of this character, where there is an utterly irreconcilable conflict between the testimony of the plaintiff and defendant; where the proper solution of the controversy depends upon the credibility of the witnesses ; where the cause has been remanded solely with the view to obtain the opinion of the jury as to some paramount fact necessary to be ascertained before a [178]*178decree in accordance with the justice of the case and the rights of the parties can be rendered; and where the verdict which has been found has received the sanction and approval of the trial court, the appellate court will sustain the decree, unless it can see from the record that something was done, or omitted to be done, on the trial which might have improperly influenced the jury in arriving at the verdict, or at least that it is doubtful whether, under the facts of the particular case, such a verdict should have been rendered at all. In every such case it would not only be manifestly unjust to the individual, but at war with a wise and salutary course of legal procedure to send the case back and to subject the party prevailing to the hazard and uncertainty of another trial, unless it should be apparent to the court, from the record, that there had been at least a probable miscarriage of justice, owing to some illegal advantage which he may have obtained on the trial. In Powell and Wife v. Manson, 22 Gratt. 177, Judge Staples, delivering the unanimous opinion of the court, said: “The bill of exceptions * * * states all the oral evidence adduced at the'trial. This court, having before it this evidence, all the depositions and exhibits read at the hearing, is competent to decide whether the purposes of justice require another trial to be had. The rule in such cases is well settled. The court will consider not merely whether the evidence adduced before the jury warrants the verdict, but also whether, having regard to the whole case, further investigation is necessary to attain the ends of justice. And although there may have been a misdirection, or evidence may have been improperly rejected, it will not grant a new trial if the verdict appears to be right upon a consideration of all the evidence, including that which was rejected. 2 Dan. Ch. Pr., new edition, page 1124, and cases there cited.” With these observations, and without stopping to comment upon the objections made by the appellant in his petition to the refusal to exclude the answers to certain questions, and the rejection of the answers to certain others, [179]*179upon which no reliance was placed at the bar, and which are obviously untenable, I come to the next exception of the appellant, which is that the testimony of the witnesses, James E. Thompson and others, relative to the price and value of the land at the time of the sale and since, as set forth in the plaintiff’s second bill of exceptions, was improperly admitted. And this, too, I shall dismiss with this single remark: that as that testimony admittedly sheds some light upon the actual value of the land, and, therefore, to a certain extent tends to negative the idea that imposition was practiced upon the plaintiff, it was relevant, and was, therefore, properly admitted. This brings me to a consideration of the main grounds upon which the application for the reversal of the cause was rested.
And in the first place, it is argued for the appellant that the court erred in giving the first instruction asked for by the defendant, which asserts in effect the proposition that the plaintiff must be held to have had notice from the written contract of sale and the title papers therein referred to, that the tract of land purchased by him of the defendant included 135 acres of mountain land. How, conceding, argumenti gratia, that this instruction was not directly germane to the issue prescribed by this court, and might, therefore, have been well refused, yet it by no-means follows that the decree must be reversed on that account. The fundamental inquiry, to which the jury had been locked up and confined by the decree of this court, was whether the plaintiff had been induced to purchase the tract of land, known as “Belle Grove,” in consequence of the fraud or misrepresentation of the defendant, Hiram Hansbrough, or his agent, as to any one or all of the boundaries of said tract. And the answer to that inquiry was plainly dependent, as the opinion of this court shows, upon the credit which the jury should attach to the witnesses on the respective sides. Under these circumstances this instruction was probably regarded by the jury as beside the mark, and certainly could not have had any appreciable weight [180]*180in moulding their verdict. It would, therefore, constitute no ground for a reversal of a judgment at law, see Colvin v. Menefee, 11 Gratt. 87; Kincheloe v. Tracewell, Id. 589; Bell v. Alexander, 21 Gratt. 1, and therefore certainly ought not to he held to be a cause for the reversal of the decree here. Powell and Wife v. Manson, 22 Gratt. 177.
The appellant’s next exception is to the second instruction given for the defendant. While it may be admitted that this instruction is rather broad, in that it allows them to weigh the answer of the defendant instead of merely the parts responsive to the hill, nevertheless, as we can perceive from a reading of the answer nothing that in our judgment could have unduly biased the minds of the jury against the plaintiff’s case, it cannot be held to be an error for which the decree should be reversed. Danville Bank v. Waddill, 21 Gratt. 449; Powell and Wife v. Manson, supra.
The next assignment of error is that the court refused to give instruction No. 1, as requested by the plaintiff. This instruction, if we assume that it was the duty of the defendant to ■furnish the plaintiff with actual knowledge of the exact location ■of the mountain lines, seems to propound the law correctly; and my first impression was that the refusal of the court to give it necessitated the reversal of the decree. But more mature reflection has convinced me that such is not the case. The real issue, as I have before had occasion to observe, was whether there had been any fraud or misrepresentation on the part of the defendant which had occasioned the sale, and that issue, as we have every reason to believe, has been fairly and impartially tried, and I cannot say that upon another trial under this instruction that a different verdict could he rightfully found.
As to the refusal of the court to give the plaintiff’s instruction No. 2, which constitutes the last assignment of error, it seems only necessary to say that such portions of it as were relevant to the plaintiff’s case were substantially embodied and presented [181]*181in the instructions which the court gave, and, therefore, the refusal to give it in the form in which it was asked can furnish no just cause of complaint under the circumstances of this case.
I have thus gone over this case and such questions of law as seem to me to he involved in it, and find no ground for reversing the decree of the circuit court of Eoanoke county; it must therefore, he affirmed.
Lewis, P., dissented.
Decree affirmed.