Wallerstein v. Brander , 136 Va. 543 ( 1923 )

West, J.,

delivered the opinion of the court.

This writ of error is to a judgment upon a verdict in lavor of Annye W. Brander, guardian, against Henry S. Wallerstein for $10,000.00, with interest and costs.

Annye W. Brander, guardian for her two children by a former marriage, purchased, as an investment, two promissory negotiable notes drawn by Henry S. Waller-stein for the sum of five thousand dollars each, dated February 28, 1918, and payable to bearer three years •after date at the Merchants National Bank of- Richmond. The notes carried six per cent, interest, represented by separate notes payable quarterly, and were secured by a deed of trust upon real estate in the city of Richmond. The interest notes were paid promptly as they became due.

Wallerstein desired to renew the principal notes at maturity, and on January 11, 1921, had his agent, H. T. Richeson, write Mrs. Brander to ascertain if it would be agreeable. He received no letter in reply, and about a month later Mrs. Brander called Richeson over the telephone and acknowledged receipt of letter, and, he says, agreed to renew the notes for two years. She says she agreed to the extension conditionally, and promised to see him later; that she saw him, but the terms of the extension were never agreed upon.

In pursuance of this extension contract, Wallerstein, on February 28, 1921, executed eight negotiable notes lor $75.00 each, payable quarterly to the order of the bearer to cover the interest to accrue on the loan for the two years. These notes were delivered to Richeson to be turned over to Mrs. Brander.

Mrs. Brander was in Richmond on February 28, 1921, where she saw Richeson and inquired about the payment of brokerage, in additon to the six per cent, interest. Upon Richeson’s refusal to pay it, she declined to accept the interest notes and demanded payment of the principal notes. Payment was refused, and she instituted this suit, by notice of motion for judgment upon the two notes of $5,000 each.

The plaintiff claimed they were past due and payable.

The defendant filed a plea of the general issue and a special plea in writing, alleging that before the maturity of the notes sued on the plaintiff, for a valuable consideration, agreed to extend the time of payment of the notes for a period of two years from the maturity thereof, to-wit, February 28, 1921, and that the notes would not be due and payable until February 28, 1923.

Whether the defendant could, in this action, avail himself of the defense set up in the special plea, or was remitted to an action on the agreement for the extension, is a question upon which the authorities are divided. 4 Minor’s Inst., Pt. I (2d ed.), p. 676; 5 Rob. Pr. (new) 33, and cases cited. If the defense "was - available in the present action, it could only be set up by a plea in suspension, but the defendant had pleaded to the merits on April 4, 1921, and the plea in suspension, filed June 7, 1921, came too late and was properly rejected. Burks’ PL & Pr. (2d ed.) 259. Besides, the only defense was that the plaintiff had no right to sue until after February 28, 1923. That time has now elapsed and the question before the court has become moot, pending the appeal. It is apparent that the court is powerless to grant the appellant any relief, since upon his own admissions the plaintiff (appellee) is now entitled to a judgment upon the notes sued on.

When, pending an appeal from the judgment of a lower court, an event occurs which renders it impossible for the court to grant him any effectual relief whatever, the court will not proceed to a final judgment, but will dismiss the appeal. Mills v. Green, 159 U. S. 651; 16 Sup. Ct. 132, 40 L. Ed. 293; Burks’ Pl. & Pr. (2d ed.), sec. 393; Franklin v. Pears, 95 Va. 602, 29 S. E. 321; Branscome v. Cunduff, 123 Va. 352, 96 S. E. 770.

Where the controversy in any case ceases to exist, leaving only moot questions, there can be no recovery for costs in this court. Hamer v. Commonwealth, 107 Va. 638, 59 S. E. 400; Branscome v. Cunduff, supra.

The writ of error will be dismissed without costs to either party.

Dismissed.