
    Richmond.
    Priest, &c. v. Whitacre, Sheriff.
    December 13th, 1883.
    1. Practice at Common Law-Alteration-Burden of explanation.&emdash;It is encumbent on party offering instrument as evidence to explain any appearance of alteration on its face. But where witness mentions a written contract and opposite party demands its production, it is not encumbent on the other party who does not offer, or claim under it, to explain any appearance of alteration on its face.
    2. Idem-Instructions.-No instruction is proper unless there is evidence before the jury to which it is relevant.
    3. Idem-New trial.-Though there be some evidence tending to establish the fact in issue, or the evidence consists of circumstances or presumptions tending that way, the verdict will not be set aside and a new trial granted, merely because the court, if upon the jury, would have given a different verdict, nor unless the verdict rendered was plainly unwarranted by the evidence.
    
      4. Idem-Idem-Idem-Case at bar.-C buys cattle and places them with K to be grazed. K sells them to T for a fixed price to be paid for when sold. Before sale they are levied on and sold under execution against K. At trial of action by T on indemnifying bond given sheriff by execution creditor, written contract between C and K is mentioned by K in testifying as. witness forT, and when that contract is produced on defendant’s demand, it has on its face some appearance of alteration.
    Held :
    1. T was under no obligation to explain the appearance of alteration.
    2. Instructions directing jury to found their verdict on such appearance of alteration are irrelevant and improper.
    3. On the facts proved the verdict for T will not be disturbed on account merely of such appearance of alteration.
    Error to judgment of circuit court of Fauquier county rendered in action on indemnifying bond at the relation of Samuel Triplett against James Priest, executor of John Murray, deceased, and others, defendants, who are the appellants. The questions here decided are on instructions ashed for at the trial by the defendants and refused, and on their motion for a new trial, which was overruled.
    Opinion states the case.
    
      Brooke & Scott, for the plaintiffs in error.
    
      Tilomas Smith, for the defendants in error.
   Lewis, P.,

delivered the opinion of the court.

The plaintiffs in error, who were the defendants in the court below, were obligors in a certain indemnifying bond, executed to the sheriff of Fauquier county, and upon which the action was brought for the benefit and at the relation of Samuel Triplett, claiming to be the owner of certain cattle which had been levied on and sold by the said sheriff by virtue of an execution in his hands against E. D. and Thos. J. Kincheloe, in favor of the executor of John Murray, deceased. A. verdict and judgment were rendered for the plaintiff; and on writ of error and supersedeas to that judgment the case is now here.

It appears that on the 5th day of December, 1878, George W. Chappelear bought of G. W. Dobbins, a cattle dealer, sixty head of cattle, at the price of $1,486.87, for which Dobbins executed to Chappelear a written receipt. On the same day, thirty of these cattle (the cattle in question) were turned over by Chappelear to Thomas J. Kincheloe, one of'the defendants in the execution referred to, under a sealed contract, of that date, between the parties, by which it was stipulated that Kincheloe was to feed and graze the cattle upon certain conditions. So much of that contract, as it appears in the record, and as is necessary to he noticed, is as follows:

“ That the said George W. Chappelear shall have absolute control over the cattle, saying when and at what time the same shall be sold, and by whom the same shall be marketed, and the proceeds of sale turned over to said Chappelear to liquidate the debt, together with interest on same, and the balance to be paid over to said Kincheloe’s tenant, Samuel Triplett. To further secure said Chappelear, the said Kincheloe has this day assigned and set apart all his corn, fodder and straw, &c., grown upon premises, unto said Chappelear, to feed said cattle.”

At the trial the plaintiff testified that he was the tenant of Kincheloe for the year 1879, as he had been the previous year, upon the terms of receiving one-half of the crops made upon the farm, and one-fourth of the profits of the cattle grazed thereon; that in November or December, 1878, the cattle in question were placed on the farm by Kincheloe, who stated that they were the property of Chappelear; that the witness grazed the cattle, believing they belonged to Chappelear and were under his control; that in the month of July, 1879, certain parties went to the farm with Kincheloe to buy the cattle, he claiming to be acting as the agent of Chappelear to sell them; that to a proposition made to buy the cattle the witness objected, on the ground that the grazing season not being over he was unwilling to lose the additional profit to be made by grazing them the balance of the season; that, thereupon, Kincheloe, the professed agent of Chappelear, sold the cattle to witness for $■48 per head, to be paid for out of the proceeds of the sales of the cattle when they were marketed; that witness had not seen Chappelear, but was responsible to him for the agreed price of the cattle; that he bought the cattle without notice of any levy upon them, or of the execution against Kineheloe. And that the cattle were afterwards sold by the sheriff, notwithstanding he was notified by the witness that they were his property.,,

Kineheloe was examined as a witness for the plaintiff, and testified that the cattle were bought and paid for by Chappelear; that soon thereafter, thirty of them were taken to the farm of the witness, which was leased by the plaintiff, to be grazed; that they belonged to Chappelear; that he (Kineheloe) had no interest whatever in them, and that, he sold as the agent of Chappelear to Triplett in the manner stated by the latter.

In the course of the examination of the witness, he having spoken of a written contract between himself and Chappelear, he was required by the defendants to produce it, which he did, and which was the sealed contract already referred to. Upon an inspection of this contract, a witness, called as an expert by the defendants, testified that the letter “s” and the words “tenant, JSam’l Triplett,” which appear together in immediate connection in the contract, were with different ink from the balance of the contract, or if not, that the ink must have been frozen when they were written, but that he could not say when they were written, or whether before or after the delivery of the contract.

With that letter and words in the contract, it would provide that the proceeds of the cattle, when sold, should be “turned over to said Chappelear to liquidate the debt, together with interest on same, and the balance to be paid over to said Kineheloe’s tenant, Sam’l TriplettWithout that letter and words the contract would provide that the said balance should be paid over “to the said Kineheloe.”

There being no further testimony offered on either side in respect to the contract, and the evidence being concluded, the defendants requested the court to instruct the jury that if they “ believe from tbe evidence tbat tbe contract between Chappelear and Kincbeloe, dated 5th December, 1878, has been altered by tbe addition of words (s—tenant, 'Sam’l Triplett,’ then it is incumbent on said Triplett, tbe party claiming as plaintiff in tbis cause, by virtue of said contract, to explain said alteration, and tbat in the event of bis failing so to do, tbe said instrument, as to its legal effect, is to be construed as if no such additional words bad been inserted.”

Tbis instruction tbe court properly refused to give. Tbe law upon tbe subject is thus laid down by Greenleaf: “ If, •on production of tbe ■ instrument, it appears to bave been altered, it is incumbent on the party offering it in evidence to explain tbis appearance. Every alteration on tbe face of a written instrument detracts from its credit, and renders it suspicious; and tbis suspicion the party claiming under it is ordinarily held bound to remove.” 1 Greenl. on Ev., § 564. In tbe present case tbe instrument in question was not produced by tbe plaintiff, but by another witness, upon tbe demand of tbe defendants. Tbe plaintiff was not a party to, and was not claiming under, it; nor is there anything to show tbat be even knew of its existence before it was produced at tbe trial. He did not claim to be entitled to any part of tbe profits derived from tbe grazing of tbe cattle, but claimed tbat be was tbe absolute owner of tbe cattle by purchase from Kincbeloe as tbe agent of Chappelear. And if, in fact, at tbe time of the alleged purchase, Chappelear bad parted with bis interest in them, in whole or in part, so tbat Triplett did not acquire tbe interest be claimed to bave acquired, it was for tbe defendants, by evidence satisfactory for tbe purpose, to bave established tbat fact.

Tbe second instruction asked for and refused is as follows: “If the jury believe tbat tbe said contract was really made between the parties thereto, without such addition, then the legal effect of said instrument was to make the thirty head of cattle therein named the property of T. J. Kincheloe, with a lien resting thereon in favor of said Chappelear to the extent of |742.44, with interest from the 5th day of December, 1878, and that said Chappelear could convey to Triplett no greater interest in said cattle.”

There was no evidence offered tending to show that the contract had been altered, and consequently there was nothing in the case to which the instruction was relevant. In the absence of such proof, the jury were bound to take the contract as it was produced, and the instruction was therefore properly refused.

The third instruction asked for, is as follows: “If the jury believe that the alleged contract between Chappelear and Triplett was made for the sale of the cattle, with the understanding that the purchase money contracted to be paid was to come out of the proceeds of said cattle when sold by Triplett, and that before the sale could be made by Triplett said cattle were levied upon under the executions of Murray's Ex'or v. Kinchloe, and sold by the sheriff, after proper indemifying bond was given, then said Triplett was not liable to said Chappelear by reason of such purchase; and the remedy of Chappelear, if any, was upon the footing of said indemnifying bond.”

It is sufficient to say, in respect to this instruction, that like the second, it is relevant to no testimony which was submitted to the jury. The testimony of Triplett, corroborated by that of Kincheloe, and uncontradicted, was to the effect that the cattle were bought by the former at an agreed price, to be paid for when the cattle were sold, but for which he (Triplett) was liable at all events to Chappelear. His liability was in nowise to be measured by the sum for which the cattle should be sold in the market, but was absolutely fixed by the terms of the contract at $48 per head, and the cattle thereupon became his property.

Enough has already been said in respect to the contract of the 5th December, 1878, to show that the circuit court did not err in refusing to give the fourth and last instruction ashed for by the defendants, which is as follows: “That the contract of the 5th December, 1878, was in its nature a deed of trust, and unless recorded had no validity against the execution creditor, Murray’s executor, at the time of the levy of his execution, unless at that time he had notice of the same.” By the terms of the contract the cattle were turned over to Kincheloe to be fed and grazed, but absolute control of them was retained by Chappelear, and the proceeds were to be paid over to Trim, the balance over and above the sum paid for them, with interest, to be paid to Triplett. Nothing was to be paid to Kincheloe, and it does not appear that any interest in the cattle was acquired by Kincheloe. What motives actuated the parties in entering into the contract does not appear, nor is it material that they should.

Nor did the court err in overruling the defendants’ motion for a new trial. The facts as to the purchase of sixty cattle by Chappelear, and the subsequent sale of thirty of them to the plaintiff, were satisfactorily established by the testimony and receipt of the cattle dealer from whom they were bought, and by the testimony of Triplett and Kincheloe. Upon the evidence introduced the jury found for the plaintiff, and we see no reason to disturb the verdict. It is well settled that where some evidence has been given tending to establish the fact in issue, or where the evidence consists of circumstances or presumptions, a new trial will not be granted merely because the court, if upon the jury, would have given a different verdict. The evidence must be plainly insufficient to warrant the verdict, to justify the court in setting it aside. And this restriction applies a fortiori to an appellate court. “For in the appellate court there is superadded to the weight which must always be given to the verdict of a jury fairly rendered, that of the opinion of the judge who presided at the trial, which is always entitled to peculiar respect upon the question of a new trial.” Blosser v. Harshbarger, 21 Gratt. 214, and cases cited. The judgment is affirmed.

Fauntleroy, J., dissented.

Judgment affirmed.  