Supreme Court of Virginia, 1851

Fleming v. Toler

Supreme Court of Virginia · Decided April 21, 1851 · Abbbn, Baldwin, Cabell

48 Va. 310; 7 Gratt. 310

Counsel

Stanard and Bouldin, for the appellant, insisted that the pleas tendered and rejected stated a valid defence to the action on the bond; and if sustained entitled the defendant below to a total rescision of the contract. And for this they referred to Lewis v. Cosgrave, 2 Taunt. R. 2; Thornton v. Wynn, 12 Wheat. R. 183; Burton v. Stuart, 3 Wend. R. 236; Street v. Blay, 22 Eng. C. L. R. 122; 1 Smith's Leading Cases, p. 155, 157, note to Chandellor v. Lopus; Story on Sales, § 405, 408, 411, 420, 426. That in this respect they differed from the special plea filed; and they also differed from that plea, in the fact that under that plea the defence was confined to the proof of the specific disease mentioned therein; whereas under the special pleas tendered, any legal unsoundness might have been proved. As to the second of the pleas, they insisted the omission of the averment of damage was not a defect in the plea. That going for a rescision, the averment of damage was out of place; and that the statute authorized the defendant to insist upon the entire rescision of the contract. And they insisted further, that the plea set out a valid defence at common law. This they argued upon principle; and also referred to Hayne v. Maltby, 3 T. R. 438. 2d. They insisted further that it was error to enter the judgment for the amount due with continuing interest, the action being on a bond with a penalty. Tennants v. Gray, 5 Munf. 494. Lyons and Grattan, for the appellee, insisted that the pleas tendered and rejected were defective, and therefore properly rejected. That the statute authorizes a plea of set off, and not a plea in bar, and these pleas are pleas in bar. That it is true that fraud and injury may be proved to the extent of the whole price, but to do this the thing must be worthless or he must return it within reasonable time. Story on Sales, § 427; Perley v. Balch, 23 Pick. R. 283; Holbrook v. Burt, 22 Id. 546; Kingsley v. Wallis, 2 Shepl. R. 57. And they insisted Fleming did not offer to return the slave within reasonable time. They insisted further, that if the rejected pleas were good, the same defence could have been made under the special plea filed. That there was in this plea a general charge of disease as well as the specific disease named, and that the proof was not necessarily confined to the specific disease mentioned. And under this plea defendant might have proved that the slave was of no value and thus have defeated the action. Beecker v. 2 Taunt. R. 4. That the second plea was defective under the statute for want of an averment of damages; and it was not good as a plea at common law. Taylor v. King, 6 Munf. 358. 2d. They insisted further, that the judgment was correct. That the act 1 Rev. Code, ch. 128, § 80, p. 508. authorized the jury to fix the period when interest should commence to run: and they referred to Davies v. Miller, 1 Call 127; Francis v. Wilson, 1 Ryan Moody 105.

Opinion of the Court

ABBBN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the pleas tendered by the plaintiff in error, and set out in his first and second bills of exceptions, were good in form and substance, and presented a proper defence to the action ; and as the same were not objected to on account of the time at which they were offered^ they should have been received. But the gravamen of each of said pleas was the unsounduess of the slave, a fact also put in issue by the special plea on which issue was joined; it being competent for the plaintiff in error on the issue joined on that plea, to have given any evidence of general unsoundness, notwithstanding the plea, in addition to the averment that the slave was defective and diseased, also specified a particular disease. As all the pleas concurred in resting on the proof of the existence of a disease or defect amounting to unsoundness, and that such defect, though known to the defendant in error, was fraudulently concealed by him; and differed merely as to the measure of relief resulting from the establishment of the facts aforesaid; and the existence of such facts being negatived by the finding of the jury on the plea putting the existence of such facts in issue, it is manifest the plaintiff in error was not prejudiced by the re *136 jection of said pleas. There is no exception *to the rejection of any testimony offered by him at the trial. If he failed to offer proof which would have been proper under the issue, it was his own fault; he could have offered, and from the whole record it is most probable he did offer, all the proof in his power to sustain his defence, and the verdict of the jury is not objected to: It therefore must be taken as concluding the facts alleged in the pleas which were rejected, and the judgment thereupon was plainly right.

The Court is further of opinion, that although the obligation sued on purports to be a penal bill, yet as the sums named in the penalty and condition correspond, there was no error in treating it as a simple obligation and rendering a verdict and judgment for the amount, with continuing interest from the time the same fell due.

Dissenting Opinion

BALDWIN, J.,

dissented. He thought the Circuit court erred in rejecting the plea in the first bill of exceptions mentioned; that there is nothing in the record to shew that the error was not prejudicial to the plaintiff in error; and that the judgment ought to be reversed.

Judgment affirmed.

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