Opinion
38441 Record No. 3026.
April 22, 1946.
Present, All the Justices.
1. EXECUTORS AND ADMINISTRATORS — Enforcement of Debt of Decedent — Positive and Negative Evidence — Case at Bar. — In the instant case, an action against an administratrix to recover money alleged to have been borrowed by decedent, the evidence for plaintiff was positive that decedent had borrowed the money and later gave his check as evidence of the loan, while the evidence for defendant, decedent's widow, was that she found no record of the loan in her husband's papers and that he had never told her about the transaction. Judgment was entered on a verdict for plaintiff.
Held: That the trial court committed no error in refusing to sustain defendant's motion to set the verdict aside on the ground that it was not supported by the evidence.
2. EXECUTORS AND ADMINISTRATORS — Enforcement of Debt of Decedent — Harmless Error — Refusal to Admit Bank Book in Evidence — Case at Bar. — In the instant case, an action against an administratrix to recover money alleged to have been borrowed by decedent, it was assigned as error that the court erred in refusing to admit in evidence a bank deposit book in the name of an infant son of decedent. The trial court did permit defendant to testify that decedent kept the bank account in the name of his son and that it did not show a deposit of $650, the amount alleged to have been borrowed.
Held: That the trial court erred in refusing to admit the record of deposits in evidence, but the fact that it did permit the witness to testify as to its contents rendered the ruling harmless error.
3. EXECUTORS AND ADMINISTRATORS — Enforcement of Debt of Decedent — Irrelevant Evidence — Conversation between Decedent and Another as to Purpose of Giving Check — Case at Bar. — In the instant case, an action against an administratrix to recover money alleged to have been borrowed by decedent and for which he gave plaintiff his check, one assignment of error was based upon the refusal of the trial court to admit testimony that decedent had requested the witness to accept, without consideration, his check and, if necessary, offer it in evidence as a bona fide debt in the event decedent's wife sued him for alimony. Defendant contended that this evidence was pertinent as it tended to show that decedent gave plaintiff a check, without consideration, in an effort to defraud his wife, but defendant failed to produce any evidence tending to show that plaintiff knew decedent contemplated perpetrating any fraud upon his wife, or that he took any part in such a scheme.
Held: That the alleged conversation between decedent and the witness was irrelevant to any transaction between plaintiff and decedent and there was no error in the trial court's refusal to permit this evidence to be introduced.
4. EXECUTORS AND ADMINISTRATORS — Enforcement of Debt of Decedent — After-Discovered Evidence — Evidence in Possession of Administratrix — Case at Bar. — In the instant case, an action against an administratrix to recover money alleged to have been borrowed by decedent, defendant assigned as error the refusal of the trial court to grant a new trial on the ground of after-discovered evidence, which consisted of six cancelled checks signed by decedent. These checks tended to impeach the testimony of a witness on a collateral issue and, in addition, were in the possession of defendant, who could have produced them at the trial.
Held: No error.
Error to a judgment of the Law and Equity Court of the city of Richmond, Part Two. Hon. Haskins Hobson, judge presiding.
Affirmed.
The opinion states the case.
Israel Steingold, for the plaintiff in error.
L. Mercer Smith, for the defendant in error.
L. C. Stinnett instituted this action against Mary E. Sweat, administratrix of O. W. Sweat, to recover $650. From the judgment entered on the verdict for plaintiff, defendant obtained this writ of error.
The evidence for plaintiff tends to show that, for several weeks prior to December 25, 1943, Sweat tried to borrow money from Stinnett; and that finally, on December 23, at Worth Carter's service station, in the presence of his wife and Mrs. Carter, Stinnett lent Sweat $650. Sweat paid $37.50 of this amount to Mrs. Carter for an account he owed her. A few days later Sweat delivered to L. C. Stinnett a chattel mortgage on his furniture to secure the payment of the $650. On February 23, 1944, Sweat and his wife contemplated a sale of their furniture and asked L. C. Stinnett to release it from the lien of the chattel mortgage. He agreed to do this if Sweat would give him a check for $650 evidencing the amount of the loan, which Sweat did. Sweat requested Stinnett not to present the check to the bank for payment as he did not have the money and it would embarrass him to have the check dishonored. The check was never presented to the bank and the money was not repaid.
Sweat died on June 14, 1944, and his wife, Mary E. Sweat, qualified as administratrix. The evidence for defendant is to the effect that Mary E. Sweat did not know that her husband had borrowed $650 from plaintiff, and that there was no necessity for him to borrow money as, in November and December, 1943, he had earned $2,123.69 as commissions on sales. The widow admitted on cross-examination that her husband "ran around with other women and drank excessively all the time and that on the Christmas of 1943 she had to borrow $20.00 from a neighbor."
The evidence for plaintiff is positive that Sweat borrowed the money and later gave his check as evidence of the loan. The evidence for defendant is that she found no record of the loan in her husband's papers and that he had never told her about the transaction. It follows that the trial court committed no error in its refusal to sustain defendant's motion to set the verdict aside on the ground that it was not supported by the evidence.
There are three other assignments of error. The first is to the action of the court in refusing to admit in evidence a bank deposit book. This bank account was in the name of O. W. Sweat, Jr., who is an infant son of Mr. and Mrs. Sweat. While the trial court refused to admit the bank record of deposits, it did permit defendant to testify that her husband kept the bank account in the name of his son and that it did not show a deposit of $650. The trial court was wrong in refusing to admit the record of deposits in evidence, but the fact that it did permit the witness to testify as to its contents renders this ruling harmless error.
The second assignment of error is based upon the refusal of the trial court to admit the testimony of Alvin V. Leake. The substance of the rejected evidence is that decedent requested the witness to accept, without consideration, his check for $750 and, if necessary, offer it in evidence as a bona fide debt in the event decedent's wife sued him for alimony. The witness stated that he refused to become a party to the contemplated fraud.
Defendant contends that this evidence was pertinent as it tended to show that decedent gave plaintiff a $650 check, without consideration, in an effort to defraud his wife. Defendant failed to produce any evidence tending to show that plaintiff knew decedent contemplated perpetrating any fraud upon his wife, or that he took any part in such a scheme. The alleged conversation between decedent and Leake was irrelevant to any transaction between plaintiff and decedent. There was no error in the trial court's refusal to permit this evidence to be introduced.
The third and last assignment of error is to the refusal of the trial court to grant a new trial on the ground of after-discovered evidence. The after-discovered evidence relied upon consisted of six cancelled checks signed by decedent, payable to Mary Carter, bearing different dates from November 28 to December 24, 1943, and totaling $79.96, purporting to have been given for cash and gas. These checks tend to impeach the testimony of Mary Carter on a collateral issue. In addition, the cancelled checks were in the possession of defendant, who, if she had exercised due diligence, could, and should, have produced them at the trial.
The judgment of the trial court is affirmed.
Affirmed.