Smith v. Burton , 94 Va. 158 ( 1896 )

Eibly, J.,

delivered the opinion of the court.

The defendants demurred to the declaration because it did not aver that the plaintiff had transferred to J. E. Wilson and J. L. Wilson the title to his interest in the “Earmville Journal” (a newspaper owned jointly and equally by him and them), in pursuance of the sale of his interest to J. L. Wilson.

The allegation would have been superflons and wholly out of place in the declaration. There was no retention by Burton of the title to his interest in the property, and it passed immediately upon the sale to his vendee 3 Minor’s Inst., Pt. 1, 253; 21 Amer. and Eng. Eney. of Law, 482; and the oases there cited. There was nothing further to be done by Burton to transfer to J. L. Wilson the title to his interest, and to constitute J. L. Wilson and J. E. Wilson the owners of the full and complete title to the property. The title to his interest having vested by the sale in his vendee, and Burton having been compelled to pay the notes from which the defendants had bound themselves by the writing sued on to save him harmless, there was no condition precedent for him to perform before bringing suit, or the performance whereof it was necessary to aver in the declaration. The demurrer was properly overruled.

It was next contended that the evidence was insufficient to sustain the judgment of the court. The plaintiff introduced on the trial the writing obligatory by which the defendants had bound themselves to save him from all loss by reason of his liability on certain notes, and also executions issued upon, judgments recovered on the notes, upon which executions there was endorsed by the owners of the debt, the receipt of the payment of the executions by Burton, and their assignment to him.

This evidence established the right of the plaintiff to recover against the defendants, and what should be the amount of the recovery. The writing cbligatory established his right to indemnity against loss by reason of his liability on the notes; the executions showed the amount due on the notes; and the receipt endorsed on the executions proved that he had paid the recovery against him on the notes and fixed the amount of the damage he had sustained by the failure of the defendants to perform their covenant with him.

It was claimed in argument here that the evidence did not connect the executions with the notes referred to in the writing obligatory, nor prove the genuineness of the receipts endorsed on the executions, whereby the payment of the notes by the plaintiff was sought to be shown, bio objection was interposed to the introduction of the evidence in the court below; nor the claim made that the executions were not issued upon judgments recovered on the notes against which the defendants had indemnified the plaintiff, nor that the receipts were not genuine. It is too late now to do so here. If the executions were not for the money due on the very debts referred to in the writing obligatory, then the executions were irrelevant evidence and inadmissible. If the receipts, were not genuine they were likewise inadmissible. If there had existed the least question as to the evidence in these respects it cannot be doubted that it would have been objected to by the counsel for the defendants. A party will not be permitted to sit still during the trial and by his silence admit the relevancy of the evidence of his adversary, or the genuineness of the written evidence, and then see.k to take advantage in the appellate court of any supposed defect in the evidence upon these grounds. To permit him to do so would be the height of injustice. The executions were in favor of the very parties designated in the writing obligator}'- as the owners of the notes and against the persons bound thereon; the amount and date of the debt, for which the execution in favor of the Planters Bank of Farmville was issued, corresponds with the amount and date of the note described as due to the bank; and though the debt in the other execution was less in amount than the debt described as due to Watkins, it corresponds in date with the debt due to him. Non constat but that one of the instalments of his debt had been paid before the judgment was recovered.

If there was any omission of what was technically necessary to the introduction of the evidence or to show its relevancy, the defendants by their silence in the court below waived any right they may have had to make the objection , here. Where inadmissible evidence has been received at the trial without objection, the opposite party cannot afterwards object in the appellate court to its having been received.

The court did not err in overruling the motion for a new trial. FTo ground whatever, as the record shows, was assigned in support of the motion. The evidence sustains the judgment of the court, and it is affirmed.

Affirmed.