Blankenship v. Ely , 98 Va. 359 ( 1900 )

Harrison, J.,

delivered,the opinion of the court.

The court is of opinion that the demurrer to the declaration was properly overruled. The bond sued on was executed in pursuance of a decree of the Circuit Court of Lee county. The defendants craved oyer of the bond, and of the decree directing its execution, and then demurred upon the ground that the bond did not conform to the requirements of the decree. The bond does not derive its efficacy from the order. It would be a valid and binding instrument, even though the record of the chancery case had been silent with respect to its execution. In determining the liability of the parties to the bond, we must look to the instrument alone, and not to the order of the court in regard to its execution, and, although the instrument may contradict the record, the parties executing it are estopped to deny its recitals. Caskie v. Harrison, 76 Va. 85.

The court is further of opinion that the four pleas tendered by the defendants were properly rejected. Whether or not these pleas were good, we need not inquire. The plea of non est factum, the general issue, was put in. Under this plea it was competent to show any fact that could have been proven under the special pleas, had they been admitted, and it is apparent from the character óf the evidence that the defendants availed themselves of their rights in this respect without objection from the plaintiff.

Where the general issue has been pleaded, special pleas that set up matter of defence which can be proved under the general issue should be rejected. Campbell Co. v. Angus, 91 Va. 438; Richmond R. Co. v. N. Y. & R. Co., 95 Va. 386.

The court is further of opinion that the plea of nul tiel record, was properly rejected. The object of this plea was to contradict the recitals of the bond by the record of the chancery suit. This question has 'been considered in disposing of the demurrer, and what is there said need not be repeated here. Franklin’s Admr. v. Depriest, 13 Gratt. 257.

The court is further of opinion that there was no erorr in giving the two instructions asked for by the plaintiff. The chancery suit in which the bond sued on was executed and filed was brought for settlement of partnership accounts, and a dissolution of the firm of II. E. "Woodward & Co., composed of hi. E. Woodward, one of the parties defendant, and G. H. Ely, plaintiff in the suit at bar. The partnership assets were in the hands of M. E. Woodward and her husband, J. W. Woodward. The bill asked for a receiver, and prayed for an injunction restraining’ M. E. Woodward and J. W. Woodward from disposing of the stock of goods on hand, or collecting any debts due the firm. Upon the hearing of the motion to grant an injunction and appoint a receiver, the court required hi. E. Woodward to execute to G. H. Ely, before the clerk of the court, a bond with approved security, in the sum of $600 conditioned to indemnify and save harmless said Ely, and to secure him whatever sum might appear to be due on final settlement of the partnership accounts; the decree further providing for the injunction and receiver, unless such bond was executed within ten days. It is admitted that, on final settlement, more than $600 was due G. H. Ely, on account of debts against the firm paid by him, and it is not denied that the sums so paid were intended to be secured by the bond sued on. It is, however, contended by George W. Blankenship that he signed the bond with the agreement and understanding that hi. E. Woodward and E. A. Munsey were to sign and acknowledge the same before the clerk of the court, and a like contention is made by E. A. Munsey that be signed it with the understanding that M. E. Woodward and George W. Blankenship would sign and acknowledge the same, and that, inasmuch as M. E. Woodward did not sign and acknowledge the bond, they are not bound.

The ground of objection to the instructions under consideration is that they make no reference to these respective agreements touching the execution and delivery of the bond by Blankenship and Munsey. The 'bond is on its face, in all respects, a complete instrument, duly signed by each of the obligors named in the body of the bond, including M. E. Woodward. It appears from the uncontradicted testimony of John W. Woodward that he signed the bond for his wife, M. E. Woodward, at her request. The bond thus executed was filed in the chancery cause as shown by the endorsement of the clerk thereon, was acted upon by M. E. Woodward receiving and enjoying the benefits resulting from its execution, and was relied upon by G. Ii. Ely as his protection in lieu of the injunction and receiver asked for by him. If, therefore, the defendants had the right, in this action, to rely upon the conditions mentioned (which we by no means concede, Miller v. Fletcher, 27 Gratt. 403), such conditions were substantially complied with. All of the parties contemplated did sign the bond, and M. E. Woodward has been held liable by the judgment complained of, so that no one has been injured by reason of her failure to sign and acknowledge the bond in proper person.

The court is further of opinion that there was no error in refusing the several instructions asked for by the defendants. Without prolonging this opinion to comment upon these instructions in detail, it will suffice to say that they are based upon the erroneous theory entertained by the defendants that the bond sued on derives its efficacy from the decree directing its execution. The questions raised 'by these instructions have already been disposed of in considering other assignments of error.

The court is further of opinion that the evidence was ample to sustain the verdict of the jury, and that it was not error to refuse to set the same aside as contrary to the law and the evidence.

Upon the whole case, we are of opinion that there is no error to the prejudice of the plaintiffs in error, and the judgment is affirmed.

Affirmed.