
    Johnson’s Ex’x v. Jennings’ Adm’r.
    April Term, 1853,
    Richmond.
    [60 Am. Dec. 323.]
    (Absent Daniel, J.)
    i. Contracts — Failure of Consideration — Recovery of Money Paid.--To entitle a party to recover back money which he has paid upon a contract which has been wholly rescinded, or the consideration of which has wholly failed, he must not have been guilty of any fraud or illegal conduct in the transaction.
    a. Same — Same — Same — Common Count — Special Count. 1— in such case, the usual and better mode of counting- is the common count for money had and received. But if the plaintiff declares specially, it must appear with sufficient certainty from the facts so set out. or from apt averments, made in the count, that the consideration has wholly failed, and that such failure did not proceed from any iraud or illegal conduct on the part of the plaintiff.
    3. Assumpsit — Plea of Statute of Limitations — Special Replication — Case at Bar. — In an action of assumpsit against an administrator, he pleads the statute of limitations. It is no answer to the plea, that the defendant’s intestate sold to plaintiff slaves in payment of the debt declared on, and that the defendant, since the death of his intestate, had, as administrator, sued for, and upon the title alone, without regard to intestate’s indebtedness to the plaintiff, had recovered the said slaves from the plaintiff within five years before the action brought.
    *4. Exceptions — Admission of Improper Evidence —What Bill Must State. — A party complaining of the admission of improper evidence, must state the facts in his bill of exceptions, from which it will appear affirmatively to the appellate court, that the evidence was improper.
    5. Assumpsit — Defences—Case at Bar. — In an action of assumpsit for various sums of money lent to or paid for the defendant’s intestate, though payments or setoffs cannot be proved without an account of such payments or setoffs filed, yet defendant may prove that the money sued for or any part of it was not lent to or advanced for the intestate, but was paid out of money of the intestate in the hands of the plaintiff.
    6. Same — Two Pleas — Verdict on One Plea — Effect of Admission of Improper Evidence as to the Other. — In such action, the issues being on nonassunwsit, and the statute of limitations, and the verdict being for the defendant alone on the latter plea, the admission of improper evidence having reference to the issue on the first plea only, and which could have no iniluence on the issue on the last plea, is not ground for reversing the Judgment.
    7. Appellate Practice — Evidence—Exception to Ques» tion Asked — Failure of Bill to State Answer — A question is propounded to a witness, which is objected io, but the objection is overruled, and an exception is taken. The exception does not state the answer of the witness, or that he answered the question. The appellate court will not reverse the J udgment.
    8. Exceptions — Exclusion of Evidence — What Bill Must Show.— If an exception is taken to an opinion of the court excluding evidence, the exception must show the relevancy of the evidence, or it is no ground for reversing the judgment.
    9. Same — Exclusion of Written Evidence Prejudicial to Exceptor. — If an exception is taken to an opinion of the court excluding written evidence, and the evidence is made a part of the exception, and is against the party excepting, the exclusion of the evidence is not error of which the exceptant can complain.
    10. Evidence — Record of Another Suit. — A record of another suit between the same parties, in which the same causes of action are in controversy, and the finding of the jury is against them, is competent evidence.
    11. Written Evidence — Construction of — Function of Court. — An instruction, which is not relevant to thé evidence in the cause, or which is only relevant to written evidence, which does not authorize it, properly refused; the court being the proper tribunal to construe the written evidence.
    The facts of this case are stated in the opinion of the court. There was a verdict for the defendant; and Johnson’s executrix applied to this court fqr a supersedeas, which was allowed.
    Baxter & Cabell and Garland, for the appellant.
    Cooke, for the appellee.
    
      
      Contracts — Failure of Consideration — Assumpsit.— That assumpsit will lie for money paid under an agreement for a consideration that wholly failed, see Garber v. Armentrout, 32 Gratt. 235, and foot-note ; Bier v. Smith, 25 W. Va. 834; Brockenbrough v. Ward, 4 Rand. 352. See also, monographic note on “As-sumpsit5' appended to Kennaird v. Jones, 9 Gratt. 183.
    
    
      
      Same — Same--Same—Special Count. — Buena Vista Co. v. McCandlish, 92 Va. 302, 23 S. E. Rep. 781, and Haigh v. U. S., etc., Ass’n, 19 W. Va. 802, approve the proposition that where money has been paid on a contract which has been wholly rescinded, or the consideration of which has wholly failed, if the party has been guilty of no fraud or illegal conduct, he may recover back his money under the common count for money had and received, or on a special count properly setting out the facts, from which the cause of action arose.
      See generally, monographic note on “Consideration” appended to Jones v. Obenchain, 10 Gratt. 259.
      Exceptions — Admission of Improper Evidence — What Bill Must State.—See Beirne v. Rosser, 26 Gratt. 537, and foot-note. And see also, the principal case approved in Carlton v. Mays, 8 W. Va. 246.
    
    
      
       Assumpsit — Defences.—In Richmond City, etc., Ry. Co. v. Johnson, 90 Va. 777, 20 S. E. Rep. 148, the court said: “Under this statute (1 E. C. 1819, p. 510), it was held in Johnson v. Jennings, 10 Gratt. 1. that in the absence of such an account as the statute contemplated, evidence was not admissible to prove a specific payment under the plea of nonassumpsit; and the statute, as it now stands in the Code, is, in this respect, substantially the same as it was in the Revised Code of 1819. It enacts that ‘in a suit for any debt, the defendant may at the trial prove and have allowed against such debt any payment or set-off which is so described in his plea, or in an account filed therewith, as to give the plaintiff notice of its nature, but not otherwise.' Code (1887), sec. 3298.”
    
    
      
       Appellate Practice — Evidence—Exception to Question Asked — Failure of Bill to State Answer. — in Edgell v. Conaway, 24 W. Va. 753, the court said: “This exception fails to state the testimony given of the contents of this paper, and therefore, it may be questionable whether it is not obnoxious to the rule, that where a question is propounded to a witness which is objected to and the objection overruled, or where the exception is to the rejection or admission of a written document, if the bill of exceptions does not state the answer of the witness in the one case, or the written document in the other, the appellate court will not reverse the judgment. Johnson v. Jen
        nings, 10 Gratt. 1; Stoneman’s Case, 25 Id. 887; Fowler v. Lee, 4 Mun. 373 ; 2 Tuck. Com. 294.”
      The principal case was also cited as authority on this point in Continental Insurance Co. v. Kasey, 25 Gratt. 276; Beirne v. Rosser, 26 Gratt. 547; Nease v. Capehart, 15 W. Va. 309.
      See also, Stoneman v. Com., 25 Gratt. 887; Taylor v. Com., 90 Va. 110, 17 S. E. Rep. 812. '
    
    
      
       Exceptions — Exclusion of Evidence — What Bill Must Show. — It is a firmly established proposition of law that where an exception is taken to the opinion of the court excluding evidence, a bill of exceptions must show affirmatively the relevancy of the evidence or else the appellate court will not reverse the judgment; for it will be perceived what the act of the court below was, and, not discovering that it was wrong, will presume it to have been right.
      The principal case was cited as authority on this point in McDowell v. Crawford, 11 Gratt. 387; Valley, etc., Ass’n v. Teewalt, 79 Va. 425; Lawrence v. Com., 86 Va. 579, 10 S. E. Rep. 840; Union, etc., Ins. Co. v. Pollard, 94 Va. 157, 26 S. E. Rep. 421; Nease v. Capehart, 15 W. Va. 308; Todd v. Gates, 20 W. Va. 471; 4 Min. Inst. (3d Ed.) 916.
      Other authorities for the proposition are Rowt v. Kile, 1 Leigh 216; Carpenter v. Utz, 4 Gratt. 270; Harman v. Lynchburg, 33 Gratt. 37, and foot-notes; Fitzhugh v. Fitzhugh, 11 Gratt. 300; Dickinson v. Dickinson, 25 Gratt. 321, and foot-note; Martz v. Martz, 25 Gratt. 361, and foot-note-, Taylor v. Boughner, 16 W. Va. 327. See McDowell v. Crawford, 11 Gratt. 397 et seq. (opinion of Moncure, J.).
      See further, monographic note on "Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
    
      
       Same — Exclusion of Written Evidence Prejudicial to Exceptor. — The principal case was cited and approved in Travelers’ Insurance Co. v. Harvey, 82 Va. 962. In 4 Min. Inst. (3d Ed.) 1074, it is said; “It is a proposition which meets us at the threshold of the discussion, that an appellant cannot complain Of irregularities in the court below for which he is himself accountable, nor for errors of his own committing. (Carpenter v. Utz, 4 Gratt. 270; Howery v. Helms, 20 Gratt. 1; Avendano v. Gay, 8 Wal. 376.) Nor can he complain of errors which are beneficial to him, nor even of those which are not injurious, provided it clearly appear that they did not, nor under the circumstances could, prejudice his interests. (Ross v. Gill, 1 Wash. 87; Pate v. Spotts, 6 Munf. 396; Eib v. Pindall, 5 Leigh 109; Morris v. Morris, 4 Gratt. 293; Crawford v. Morris, 5 Gratt. 90; Vance v. McLaughlin, 8 Gratt. 289; Early v. Wilkinson, 9 Gratt. 68; Johnson v. Jennings, 10 Gratt. 1; Stainback v. Bank of Virginia, 11 Gratt. 266-67; Col-vin v. Menefee, H Gratt. 87; Clarke v. Reins, 12 Gratt. 98; Harvey v. Epes, 12 Gratt. 153; Franklin v. Depriest, 13 Gratt. 257; Carrington v. Goddin, 13 Gratt. 587; R. & Dan. R. R. Co. v. Medley, 75 Va. 499; West. U. Tel. Co. v. Reynolds, 77 Va. 174; Rorer Iron Co. v. Trout, 83 Va. 397, 2 S. E. Rep. 713; Clark v. City of Richmond, 83 Va. 355, 5 S. E. Rep. 369; R. & D. R. R. Co. v. Norment, 84 Va. 167, 4 S. E. Rep. 211; Lucas’ Case, 84 Va. 303, 4 S. E. Rep. 695; Blackwell v. Patton, 7 Cr. 471; Campbell v. Pratt, 2 Pet. 354; Greenleaf v. Birth, 5 Pet. 132; Deery v. Gray, 5 Wal. 807; Bethell v. Matthews, 13 Wal. 1.)”
    
    
      
      Written Evidence — Construction of — Function of Court. — In Washington, etc., R. Co. v. Lacey, 94 Va. 465, 26 S. E. Rep. 834, it was laid down as a general rule that the construction of all.written documents in evidence belongs to the court exclusively and the principal case. 1 Taylor on Ev.,§ 43, etc.; Union, etc., Ins. Co. v. Pollard, 94 Va. 146, 26 S. E. Rep. 421; 4 Min. Inst. (3d Ed.) p. 1086, are cited as authority for the proposition. See also, Herbert v. Wise, 3 Call 239.
    
   MONCURB, J.,

delivered the opinion of the court.

*This was an- action of assumpsit, brought by John F. Johnson, and afterwards revived by his executrix, against Henry Dunnington, administrator of Philip Jennings. The original declaration contained only the three common counts. There were two amended declarations. The last count of the first, and the last two counts of the second, amended declaration, were special counts; in which it was stated, that Jennings, in his life time, being indebted to Johnson in various sums-of money on various accounts, as therein mentioned, it was agreed between them that Jennings, in consideration of said indebtedness and in satisfaction and payment thereof, would sell and deliver to Johnson the following slaves, viz: Buey, Rives, Henry and Blvira; and the said Jennings did then and there sell and deliver to said Johnson the said slaves, in payment and discharge of his indebtedness aforesaid. But the said defendant, as administrator as aforesaid, not regarding the promises and agreement of his intestate, so by him made as aforesaid, caused his action of detinue to be brought against said plaintiff for said slaves; and, Upon the question of title alone, without regard to the indebtedness aforesaid, recovered a judgment for said slaves, with damages for their detention and costs; which judgment was satisfied; and the contract for said slaves, so sold and delivered as aforesaid, having been vacated as aforesaid, and rendered null and void, cause of action thereupon accrued to the plaintiff to recover of the defendant, administrator as aforesaid, the consideration money so paid for said slaves. In consideration whereof, and of assets in his hands, the defendant promised to pay the same to the plaintiff. These special counts differ somewhat in their details, but may be regarded as substantially the same, so far as it may be necessary now to consider them. I have stated, substantially, the details of the next to the last; which seems to be the least ^objectionable. To each of them there was a general demurrer, in which the plaintiff joined, and which was sustained by the court. And this is the first error assigned in this case.

These counts can only be sustained, if at all, on the ground of a failure of consideration of. the contract of sale. There can be no doubt but that if money be paid on a contract of sale, which is wholly rescinded, either by the mutual consent of the parties or by virtue of a clause contained therein, or the consideration of which wholly fails, the party making such payment, if he has been guilty of no fraud or illegal conduct in the transaction, may recover back the money under the common count for money had and received. And though that is the usual and better mode of counting in such cases, there can be no legal objection to a special count, properly setting out the facts from which the cause of action arises. But it must appear with sufficient certainty, from the facts so set out, or from apt averments made in the count, that the consideration has wholly failed, and that such failure did not proceed from any fraud or illegal conduct on the part of the plaintiff. Now, let us apply this test to the counts in question. In substance, they only show a sale and delivery of slaves on the one side, and payment of the purchase money on the other, and a subsequent recovery of the slaves in an action of detinue brought by the vendor against the vendee. They do not show what connection there was, if any, between the contract of sale, and subsequent recovery of the slaves. After the sale, they may have been repurchased by the vendor from the vendee. If the contract of sale was rescinded by mutual consent of parties, or by virtue of a clause contained therein, the fact should have been so averred. So far from this, it is averred in these counts that the action of detinue was brought in disregard *and violation of the contract of sale. But if so, why did the plaintiff in that action recover? This is an enigma which ought to have been, but is no where in the declaration explained. If the sale and delivery of the slaves conferred on the vendee an absolute title therein, how could the vendor recover them back without having previously reacquired the title? If he recovered on his original title, unaffected by the supposed contract of sale, the recovery negatives the existence of such contract, or conclusively shows that it was void. It is difficult to conceive how a cause of action could arise out of a void contract; and I suppose it certainly could not, if the contract was rendered void by the frartd or illegal conduct of the plaintiff in the action. It should appear from the count, if special, that the contract was not so rendered void.

But it is argued for the plaintiff in error, that a good cause of action is set forth in the special counts, which is not destroyed by the subsequent transactions therein stated. It is true, these counts set forth a general indebtedness, somewhat in the form of the common counts; but they expressly charge that such indebtedness was satisfied by a sale and delivery of slaves; and rely on the supposed violation of the contract of sale, and not on the implied promise resulting from the fact of the original indebtedness, as the cause of action.

I think therefore the demurrer to the special counts was rightly sustained.

The second error assigned is, that the court rejected the plaintiff’s special replication to the defendant’s pleas of the statute of limitations.

The plaintiff sought by these replications to remove the bar of the statute, by relying on, substantially, the same statement of facts on which she had unsuccessfully relied in the special counts. I think the '’''replications were properly rejected, for reasons already stated, besides others. They do not show on what ground the supposed vendor recovered the property, after it was sold and delivered for valuable consideration, as averred in the replications. If the contract of sale was void, it could not have barred or suspended the right of action for the original debt; and certainly it could not, if rendered void by the fraud or illegal conduct of the vendee.

Two cases were much relied on in the argument, in support of these replications; but, I think, do not sustain them. The first is the case of Cowper v. Godmond, 23 Eng. C. L. R. 452. That was an action of assumpsit for money had and received, for the recovery of the consideration money of a void annuity, rendered void by an informality in the memorial thereof, which, under a British statute, was required to be made and registered. The annuity was granted more than six years before the action was brought, but was treated by the grantor as a subsisting annuity within that period. The question in the case was, “At what time did the cause of action arise?” Tindal, C. J., said, “The cause of action comprises two steps: The first is the original advance of the money by the grantee; the second, is the grantor’s election to avail himself of the defect of the memorial of annuity. The cause of action, therefore, ■was not complete till the last step was taken.” It is the duty of the grantee of the annuity to see that the memorial is properly made and enrolled; and if there be any defect therein, he cannot avail himself of it to avoid the contract. The grantor may treat the contract as a legal one, and perfect it, or he may avoid it, at his option. So long as he continues to treat it as a subsisting annuity, the grantee has no cause of action against him for the consideration money. The grantee has been guilty of no fraud, but of a mere omission *of a legal formality; and though, by the terms of the statute, he must lose the benefit of the annuity, he is entitled to have the purchase money restored to him, after deducting so much of the annuity as he may have received. The difference between that case and this must be sufficiently obvious, without further remark. The other case relied on is Elmore’s adm’x v. Bowles’ ex’or, 7 Graft. 385; which, 1 think, is also very different from this. There, the replication to the plea of the statute of limitations set forth a covenant between the parties, which was intended, and had the .effect, to suspend the right of action on the note until the happening of a certain contingency, and then to revive it. Here, the replications set forth an executed contract of absolute salé, intended to discharge the original debt, and not to suspend the right of action therefor. ■ If the contract was valid, it discharged the debt; if void, it does not appear how it could have suspended the right of action for the debt.

The third and last error assigned is, that the court admitted certain testimony of William B. Brown on. the trial of the issues joined on the general replication to the pleas of non assumpsit and the statute of limitations. The bill of exceptions states, that while the said witness was under cross examination, the deféndant’s counsel propounded to him this question: “Do you know of any money received by John E. Johnsoh, in his life time, for Philip Jennings?” To the answering of which, the plaintiff objected, because the defendant had not filed with his pleas any account of payments or setoffs ; but the court overruled the objection, and directed the witness to answer the question. To which opinion the plaintiff excepted. It does not appear from the bill of exceptions what answer the witness gave to the question. It may have been, that he had no knowledge on the subject; and if so, was wholly unimportant, and would ^certainly not be a good ground for reversing the judgment. Though, in the state of the pleadings, it could not have been legal evidence, if it only tended to prove a specific payment or setoff, yet it might have been legal evidence, if it tended' to prove that the money charged in the account on which the suit was brought, or any of it, was not loaned or advanced, as charged, but was paid out of the money of Jennings in Johnson’s hands. The evidence would then have gone to the foundation of the cause of action, and not to its discharge by payment or setoff. As was said by Judge Carr, in Rowt’s adm’x v. Kile’s adm’r, 1 Leigh 216, 223, “It is certain the jury ought to have all the evidence which is relevant: of its weight it is to judge. But when we are called on to reverse the decision of a judge, it is incumbent on the party seeking this,' to show that there is error; and to this end he ought to present to us such a case as shows the relevancy of the evidence rejected.” In that case, the evidence objected to was set out in the bill of exceptions; and the court was only asked to presume it irrelevant because its relevancy did not appear. In this, the court is asked to presume, first that the question was answered, and then, that the answer was of such a nature as to be inadmissible. But the answer could have had no influence on the issue on the plea of the statute of limitations, on which alone a verdict was found for the defendant, and could not therefore have prejudiced the plaintiff. I think there is no error apparent in this bill of exceptions; and certainly none which can have the effect of reversing the judgment.

Exceptions were taken by the plaintiff to other opinions of the court given on the trial, which, though no errors are assigned thereon, must be briefly noticed, especially as some of them were noticed in the argument of one of the counsel for the plaintiff in error.

*The first of these additional exceptions was to the opinion of the court excluding the bill of sale for the slaves aforesaid, as evidence in the case. Nothing is stated in the bill of exceptions to connect this bill of sale with the account on which the suit was brought; and, in the absence of such connection, which ought to appear in the record, the bill of sale was irrelevant, and properly excluded.

The next of these exceptions was to the opinion of the court excluding the record of the proceedings in the action of detinue, in which the slaves aforesaid were recovered by the defendant from the plaintiff. There is nothing set out in the bill of exceptions to this opinion of the court to show the relevancy of the said record as evidence in the case, except the record itself; and there is nothing in that record tending to show its connection with the cause of action in this case, except the evidence set out in a bill of exceptions taken to the opinion of the court overruling a motion for a new trial; some of which evidence tended to show that the slaves had been sold and conveyed by Jennings to Johnson in payment or security of the account on which this suit was brought, and two bond debts due by the former to the latter. If it had appeared in this record that the bill of sale was avoided in such manner or for such cause as entitled Johnson to reclaim the purchase money of the slaves, or to claim payment of the debt intended to have been satisfied or secured by the bill of sale, it would then have been admissible in the case, and would have had the effect of repelling the bar of the statute of limitations. But so far from that, it appears by the record that the slaves were recovered on the ground of fraud in obtaining the execution of the bill of sale. The evidence tended to prove such fraud; and the court having instructed the jury, on the motion of the defendant in that case, that if they believed from the ^evidence that the bill of sale was executed without fraud, the title to said slaves was thereby vested in the defendant, whether the purchase money was paid or not, the finding of the jury against the defendant was an affirmance that the bill of sale had been fraudulently obtained. The record was therefore against, and not in favor of, the plaintiff in this action, and she cannot complain of any error in the opinion of the court which excluded it.

The next exception was to the opinion of the court overruling the objection of the plaintiff to the introduction by the defendant, as evidence, of the record of the proceedings in a suit brought at the same time with this action, by the same plaintiff, against the same defendant, on the two bond debts above mentioned; in which suit judgment was recovered by the plaintiff. The defendant in that case claimed, as set-offs, the damages and costs recovered in the detinue case; and also various payments claimed to have been made by Jennings to Johnson, in money, services rendered as a carpenter, cash received in rents, and hires of negroes; of which offsets, accounts were filed. The plaintiff, on the other hand, introduced an account containing all or nearly all the items of the account on which this action was brought, and offered to prove the same for the purpose of lessening any amount which the defendant might show himself entitled to as offsets to the said bonds ; and the court, notwithstanding that the defendant objected, among other things, that the account was barred by the act of limitations, permitted the plaintiff to give evidence of said account, and to rely on the same before the jury. Evidence was accordingly introduced tending to prove both the setoffs and the counter setoffs, or some of them ; and the jury having by their verdict disallowed the counter setoffs, at least beyond the amount of any payments claimed to have been made by Jennings to Johnson *as aforesaid, the judgment in that suit was evidence in this, that the claims asserted in both, and disallowed, or set off in that, were not due.

The next and last exception was to the opinion of the court refusing to instruct the jury, on the motion of the plaintiff, “that if from the evidence adduced in the cause (and set out in the bill of exceptions) they were of opinion that the plaintiff could not, by any lawful impediment, have brought his action, or was prevented from bringing his action, by a mode of payment which afterwards failed, until a period within five years next preceding the commencement of this action, then the statute ' of limitations did not apply, and the plaintiff might recover, notwithstanding the lapse of time.”

I think enough has been already said to show that the court was right in refusing to give this instruction. After the bill of sale and record in the detinue suit were excluded, there was no foundation for it in the evidence. Regarding them as part of the evidence, it was for the court to construe them, and they showed nothing which could have suspended the action, or ought to repel the bar of the statute.

Upon the whole, we see no error in the judgment, and are for affirming it.

Judgment affirmed.  