Riddick v. King
Riddick v. King
Opinion of the Court
delivered the opinion of the court.
David N. King sued John R. Riddick for four hundred and fifty dollars for money had and received, arid recovered judgment against him for that amount.
The account sued on by King was composed of two items, one of $150.00 and the other of $300.00; both being for money alleged to have been paid to Riddick for the benefit of King. The item of $150.00, though disputed by Riddick, was fully proved by the testimony of W. W. Old, Jr., who testified that he had negotiated ¿a loan of $10,000 on the First Baptist Church of Brighton; that he had paid out the same on account of the bills against the church and that he had given John R. Riddick a check for $150.00, payable to the order of D. N. King or John R. Riddick, and that he, by instructions, had made the said check payable to D. N. King, but upon being told by Riddick that he, Riddick, had paid King, added “or John R. Riddick” to said •check and gave same to Riddick.
The facts as to the item were as follows: The trustees of the First Baptist Church of Brighton, in Portsmouth, Va., were indebted to King in the sum of •$600.00 for work done on their church. The completion of the work on the church was turned over to Riddick. Some time after King had been given the work on the church, the trustees of the church informed .King that $450.00 had been paid to Riddick for his benefit. King testified that after receiving this in■formation he saw Riddick several times and that Riddick promised to pay him, but had never done so. 'Two of the trustees severally testified “that the pastor,
Riddick testified “that he did not receive any money for King from any one; that he did not promise to pay King anything; that prior to the trial he had not heard, of the claim that any order for the payment of money in regard to the work on the church had been changed; that he did receive $350.00 from Mr. Old and paid $300.00 on account of labor and material in the construction of the church; * * that D. 1ST. King said nothing to him about paying him any money on the-church until after the church had been sold at a loss under a deed of trust, and that he did not tell W. W. Old, Jr., that he had paid King $150.00; and that he •knew nothing about King’s claim with reference to the said check.”
- This was all the evidence in the ease at the time the jury rendered their verdict and the court pronounced judgment thereon. Some days afterwards, during the same term, Riddick moved to set aside the verdict on the ground of after discovered evidence, supported by the affidavit of W. W. Old, Jr., stating that “in regard to the reputed - claim made by witnesses on April 8, 1924, in the Circuit Court of the city of Norfolk, that, the affiant, W. W. Old, Jr., had paid over $350.00 to-
Only two errors are assigned. First, that the trial court erred in admitting the testimony of the two trustees as to what “Rev. Brown” told them, and, second, the refusal of the trial court to grant a new trial on the-ground of after discovered evidence.
The testimony of the two trustees was bald hearsay and ought not to have been received.
If we strike from the record the hearsay testimony of the two trustees, there remains nothing as to the-item of $300.00 but the testimony of King that he had. seen Riddick several times and he had promised to pay the money but had not done so, and the testimony of Riddick that he had not received any money for King and had not promised to pay him anything. He admitted receiving the check for $350.00, but said he had paid $300.00 “on account of labor and material in the construction of said church.” The after discovered evidence tended to impeach the testimony of the two trustees, and the testimony of the plaintiff is in direct conflict with that of the defendant. The testimony of the trustees may have been, and probably was, what settled the conflict in favor of the plaintiff. It cannot be rejected as harmless. Under these circumstances,, the verdict of the jury will have to be set aside.
The testimony of the trustees had no relation to the item of $150.00, which, as we have seen, was otherwise •satisfactorily established.
The case will be remanded to the trial court, with direction to set aside the verdict of the jury, to credit its judgment by $300.00 as of its date, and to award a new trial to the defendant, Jno. R. Riddick, as to the item of $300.00 aforesaid. The plaintiff in error will be awarded his costs in this court as the party substantially prevailing.
Reversed.
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