
    *Mays v. Callison.
    April, 1835,
    Richmond.
    (Absent Tucker, P.)
    Assignment without Recourse — Construction—Case at Bar. — A. holding- a bond executed by B. to C. contracts to transfer this bond to D. for valuable consideration, and to procure C.’s assignment thereof to D. without any responsibility of or recourse against A. whatever; C. at A.'s instance, accordingly assigns the bond to D. who assigns it to another, who brings a suit against the obligors on the bond, in which it appears that the bond had been discharged by payment, before it was assigned to D. upon which D. pays the amount to his assignee; C. who had made the assignment of the bond at A.’s instance to D. becomes insolvent: in an action by D. against A. to recover the amount of him, it seems, the contract that the bond should be assigned by C. to D, without recourse against A. did not exonerate A, from liability to D. in the case which actually occurred, of the bond being paid off and discharged at the time of the contract.
    Same — Meaning and Effect — Province of Jury. — The meaning and effect of the contract was properly left to the decision of the jury by the court.
    New Trial — Verdict Contrary to Evidence.-- — A -new trial ought not to be granted in a doubtful case, merely because the judge, if one of the jury, would have found a different verdict.
    Bills of Exception — New Trial — Certification of Facts. —Bill of exceptions to refusal of court to grant a new trial, in one part of it, states the evidence adduced, not the facts proved; yet it appears, that the court meant to certify the whole as facts proved: Held, the bill of exceptions is well taken.
    Assumpsit by Callison against Mays, in the eireuit court of Greenbrier. There was a special count in the declaration, stating that Mays, having become indebted to Cal-lison in the sum of 160 dollars for the price of a horse, agreed to transfer to him, in part payment, a bond, then held by Mays, executed by W. Withrow and J. Skeggs, to T. Masterton, for 100 dollars, payable at a future day, and to procure Masterton to make an assignment thereof to Callison; that Masterton at Mays’s request, after-wards, and before the day appointed for the payment of the contents, assigned the bond to Callison, "for value received; that afterwards Callison assigned it to M. M’Clintic, who assigned it to S. Dunn, who assigned it to J. Withrow; that J. Withrow brought debt on the bond against W. Withrow and J. Skeggs, the obligors, in which action, it being proved that the obligors had paid off the debt to Masterton before he assigned the bond to Callison, a verdict and judgment were rendered for the obligors; and that thereupon, Callison paid J. Withrow the assignee, the debt due by the bond and interest thereon accrued, and costs by him incurred in his suit against the obligors, amounting to 160 dollars; by reason whereof Mays became liable to pay Callison the sum of 160 dollars, and so being liable, in consideration thereof, assumed the payment thereof to him &c. To this special count, were added general counts, for the price of the horse; for money paid, laid out and expended, by the plaintiff for the defendant’s use; for money lent and advanced; and for money had and received. Plea, the general issue. On the trial, the jury found a verdict for the plaintiff for 148 dollars with interest &c. The defendant moved for a new trial, on the ground, that the verdict was against evidence; but the court overruled the motion, and gave the plaintiff judgment; and the defendant filed a bill of exceptions to the refusal of the court to grant the new trial.
    This bill of exceptions stated, that “the facts which appeared on the trial were as follows:’’ That Callison proposed to sell a horse to Mays, and Mays agreed to give him 160 dollars for the horse, 60 dollars to be paid by Mays, and the residue, 100 dollars, by the transfer of a bond for that amount, executed by W- Withrow and J. Skeggs to Masterton, payable at a future day, which bond was then held by Mays, though Masterton had not assigned it to him, and Mays was to procure an assignment of the bond by Masterton to Callison ; and that the bargain being concluded, Mays procured *an assignment of the bond by Masterton to Callison, which Callison received, and the horse was delivered to Mays. The bill of exceptions then stated, “that the witness” (meaning the witness who had proved the facts above stated) “had no further recollection of what passed at the bargain: and that another witness stated” the same facts in substance; and stated further, that Callison agreed to take the bond with Masterton’s assignment thereof to him, which Mays was to procure, without any responsibility of or recourse against Mays whatever: that both parties were well acquainted with Masterton; he was Callison’s uncle: that nothing was said, at the time, as to the solvency of the obligors or of the assignor, or about the bond having been discharged; and that Callison had admitted, that he thought Masterton solvent, at the time of the transaction. The bill of exceptions proceeded to state, that the assignments of the bond, by Callison to M’Clintic, by M’Clintic to Dunn, and by Dunn to J. Withrow, — the suit on the bond by this last assignee against the obligors, ■ — and the verdict and judgment therein or the obligors, on the ground that the debt had been paid by them to Masterton, before notice of Masterton’s transfer to Mays, for assignment to Callison, — appeared by the record of that suit: that it also appeared, that Masterton was insolvent; and that Cal-lison had paid J. Withrow the debt for which he was liable by his assignment of the bond. That the court overruled the motion for a new trial, because it was the province of the jury to judge, whether Callison’s agreement to take the bond, with Masterton’s assignment thereof to him, without any recourse to Mays, extended further than to the solvency of the obligors and the assignor Masterton, and had respect to the circumstance of the bond having been paid, or being otherwise void, át the time of the transfer; and if the jury found from the facts, that the contract had no respect to the fact of the bond having been paid, or being otherwise void, the verdict was right.
    *Mays excepted to this opinion, and appealed from the judgment to this court.
    The cause was argued here, by Nicholas for the appellant, and Johnson for the ap-pellee.
    I. The first point was, whether the bill of exceptions was well taken? Johnson objected, that even in the first part of it, in which it professed to state the facts that appeared on the trial, it was obvious that it only stated the testimony of the first witness ; and then it proceeded, in express terms, to detail the testimony of another witness. The following cases were cited; Bennett v. Hardaway, 6 Munf. 125; Car-rington v. Bennett, 1 Deigh 340; Ewing v. Ewing, 2 Id. 337; Jackson’s adm’x v. Henderson, 3 Id. 196, and the recent case of Green v. Ashby, reported ante.
    II. Upon the merits, Nicholas said, there was no proof of fraud on the part of Mays, and no imputation of the kind. It was apparent from all the circumstances of the transaction, that Mays had no reason to apprehend that the bond had been paid off to Masterton, and that all he intended to transfer, was the bond itself, with the security of Masterton’s assignment, without recourse to him in any event; and that Cal-lison intended to take the bond upon the credit of Masterton’s assignment and responsibility. Masterton was still undoubtedly liable for the money, upon the contract of assignment; and it was immaterial, as between Callison and Mays, whether Masterton was solvent or not, for the plain purpose of the contract was to exempt Mays from liability, in case Masterton should prove insolvent. He cited Crawford v. M’Donald, 2 Hen. & Munf. 189, where an agreement for the conveyance of lands was assigned by .Crawford to M’Donald, without recourse, accompanied by a delivery of a paper purporting to be a grant, with certificates as to the quality of the land, and the goodness of the title; and it turned out afterwards, that all these *papers were forgeries; yet, there being no proof of fraud, or knowledge of fraud on Crawford’s part, it was held that he was not liable to the assignee.
    Johnson answered, that Callison took the bond, not upon the credit of the assignor alone, but upon the credit of the obligors as well as of the assignor; that neither party contracted with a view to the fact that the bond had been already paid off to the obligee; that Callison did not intend to take, nor Mays to impose on him, any risk of that kind, but only the risk of the insolvency of the obligors and assignor.
    
      
      Assignment without Recourse. — The principal case is cited and approved in Ober v. Goodridge, 27 Gratt. 890. See Houston v. McNeer, 40 W. Va. 365, 22 S. E. Rep. 80; McSmithee v. Feamster, 4 W. Va. 673; Mayo v. Carrington, 19 Gratt. 74. See also, monographic note on “Assignments” appended to Ragsdale v Hagy, 9 Gratt. 409.
    
    
      
      New Trial — Verdict Contrary to Weight of Evidence. —The principal case is cited and approved in Read v. Com., 22 Gratt. 942; Martin v. Thayer, 37 W. Va. 38, 16 S. E. Rep. 496; Vaiden v. Com., 12 Gratt. 728; Burch v. Hylton, 89 Va. 448, 16 S. E. Rep. 342. See foot-notes to Ross v. Overton, 3 Call 309; Slaughter v. Com., 11 Leigh 681; Bell v. Alexander, 21 Gratt. 1. See monographic note on “New Trials.”
    
    
      
      Bills of Exception — New Trial — Certification of Facts. — The principal case Is cited and approved in Morgan v. Fleming, 24 W. Va. 194; Pryor v. Kuhn, 12 Gratt. 618; Slaughter v. Tutt, 12 Leigh 159. See monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
   CARR, J.

This is an appeal from the refusal of the circuit court to grant a new trial, asked on the ground, that the verdict was contrary to evidence: and the first question raised in the argument, is, whether the bill of exceptions was well taken? whether the statement therein given by the circuit court, is a state of the facts proved at the trial, or only of the evidence? I feel pretty confident, that the judge meant it as a state of the facts; that is, that he did not intend to set down any fact, which he did not consider as a fact proved, though his manner of stating the facts, may make it seem, in some parts, like a statement of evidence. The judge refused the new trial, because he thought it was the province of the jury to decide, whether Callison, in taking the bond with Masterton’s assignment to him, without recourse to Mays, meant to take upon himself all risks, and among others, that of the bond having been, at the time of the assignment, already paid off? or only to take the risk of the insolvency of the obligors and of the assignor? And it is most clear, that it was the province of the jury to decide this question; for they were t > judge of the whole contract, and this was of the very essence of it. The true question for the judge, and for us, is, whether in deciding that the plaintiff only meant to take the risk of insolvency, the verdict is contradicted by the evidence? *And here, it is well to recollect what this court has said in other cases, and especially, in Ross v. Overton, 3 Call 309, that “a new trial, because the verdict is contrary to evidence, ought to be granted, only in a case of a plain deviation, and not in a doubtful one, merely because the court, if on the jury, would have given a different verdict; since that would be to assume the province of the jury, whom the law has appointed the triers.” Is this verdict then plainly contradicted by the evidence? I cannot say so. On the contrary, I stronglj' incline to think the jury was right. Here was a man selling a horse, for which he asked 160 dollars; we are not told that this was an extravagant price. A bond for 100 dollars is offered in part: it purports to be for so much money, under the hands and seals of the parties. The holder says, “I will get this bond assigned to you by the obligee, but then you must take it without recourse to me.” What was the meaning of this proposition? What was the risk in the contemplation of the parties? for this makes the contract. I think it was this: “here is the evidence of a debt of 100 dollars, at this time owing from Withrow and Skeggs to Masterton ; Masterton shall assign to you; and thus you cannot.lose your money, unless all three of them should prove insolvent; this risk you must run; and this risk (says the other party) I am willing to run. ’ ’ How can we suppose, that it occurred to the mind of either, that there was any other risk? The very possession of the bond, the claiming it as property, as something binding the obligors, precluded the idea that it was at that moment discharged, or satisfied; for then it was no bond; it bound nobodjr; it was not the representative of money. The bond too, was payable at a future date: who could have dreamed, that it was already mere wax and paper,— not a cent due on it? I hold, then, that this contract was made on the basis, that the bond was unpaid, and that this risk did not enter into the contract. *But if this be not clearly so, we must all agree, that it is at least doubtful, whether this risk was contemplated; and that the jury has not committed so palpable a breach of propriety, has not gone so directly in the teeth of the facts proved, as to justify us in saying the court did wrong in refusing the new trial-. I think the judgment should be affirmed.

The other judges concurred. Judgment affirmed.  