#### *Rohr v. Davis and Others.

November, 1837,

Richmond.

Bills o( Exception — Certificate of Evidence.* — A bill of exceptions to an opinion of a court overruling- a motion for a new trial, instead of stating the facts proved, states the evidence adduced at the trial; but the evidence thus set forth, shews that the *23evidence for the party for whom the verdict was found, supposing it true, and disregarding the evidence for the other party, is not sufficient to warrant the verdict: Held, such exceptions, in such case, are well taken, to enable an appellate court to review and reverse the judgment overruling the motion for a new trial.

Demurrer to Evidence — Who May Demur — When Joinder Compelled.-† — in the trial of actions at law, either party has a right to demur to the evidence of the other, and the other party ought to be compelled to join in the demurrer, unless the caséis plainly against the demurrant, and his object appears to be merely to delay the decision.

Same — Refusal of Court to Compel Joinder — Effect.:‡:— Where a demurrer to evidence is tendered in a case in which the party may properly demur, if the court refuse to compel the other party to join in the demurrer, this is error for which the judgment shall be reversed.

Action on Joint Contract — What Plaintiff MustProve.§ —In an action upon the joint contract of three defendants, the plaintiff, to sustain his action, must prove that all three joined in the alleged contract; for if it appear that one of the defendants was not a party to the contract, though the other two were, the plaintiff must fail in this joint action.

This was an action of assumpsit in the county court of Campbell, brought by Rohr against Davis, Bullock and Tynch, to recover the amount which the plaintiff claimed to be due to him from the defendants, for stone work by him done for them. The declaration alleged a joint contract of the three defendants with the plaintiff for the work ; and the defendants pleaded jointly, non assumpsit.

Upon the first trial, the jury found a verdict for the plaintiff for 1164 dollars damages, The defendants moved the court for a new trial; the court overruled the motion ; and the defendants filed a bill of exceptions to that opinion. The court then gave the plaintiff ^judgment for the damages assessed by the verdict; and the defendants appealed to the circuit court of Campbell.

*24The question in the circuit court, therefore, was whether, upon the state of the case appearing in the bill of exceptions, the county court erred in refusing the new trial asked by the defendants ? The bill of exceptions did not purport to state the facts proved at the trial: it set forth the evidence on the part of the plaintiff, at large, as it was delivered by the witnesses, and the substance of the defendants’ evidence. From the plaintiff’s own evidence it appeared, that the work for which he claimed compensation in this action, was the building of a stone wall in the town of Lynchburg, for the purpose of filling up a deep ravine, in order to connect the Lynchburg and Salem turnpike road with a street called the sixth alley in that town. That the Lynchburg and Salem turnpike company could only bring their road to the outer boundary line of the town. That, therefore, the persons owning property in the lower part of the town, and interested in connecting the turnpike road with the sixth alley, set on foot a subscription for the purpose of effecting the work: there were twenty subscribers, engaging to pay various sums by them respectively subscribed; and among the subscribers were two of the defendants, namely, Davis and Bullock, but the defendant Lynch was not a subscriber. That all three of the defendants were interested in the improvement, being owners of property in the town which would be benefited thereby. That the plaintiff did the stone work which was required to connect the turnpike road with the alley of the town. That the defendants Davis and Bullock superintended the work, gave directions concerning it while it was in progress, were present at the measurement of it after it was done, and directed the plaintiff to make out his account for the same against themselves and Lynch; and Davis and Bullock afterwards, *upon being applied to for payment, made declarations and did acts, from which it might very fairly be inferred, that they held themselves bound to pay for it, or to see it paid for, and, therefore, that they had made the contract with the plaintiff for the work : but there was no evidence adduced on the part of the plaintiff, that the defendant Lynch had ever said or done any thing, from which it could be inferred, that h.e was a party with Davis and Bullock in the contract for the work with the plaintiff; and when he was applied to for payment, by the plaintiff, he promptly disclaimed all connexion with the transaction ; nor did the evidence shew the least reason for'supposing that he was connected with it, except the direction given by Davis and Bullock to the plaintiff, above mentioned, that he should make out his account against them and Lynch. Such being the state of the evidence on the part of the plaintiff, it is unnecessary to state that adduced for the defendants : upon the plaintiff’s own shewing, he was not entitled to maintain this joint action, and to have a joint verdict and judgment, against Davis, Bullock'and Lynch, even if his evidence was sufficient to entitle him to recover against Davis and Bullock. Therefore, the circuit court reversed the judgment of the county court, set aside the verdict, and remanded the cause for a new trial.

There were several trials in the county court afterwards, with various results. At the last trial, the defendants tendered a demurrer to the evidence, wherein they set forth all the evidence on both sides: but the plaintiff objected to join in the demurrer, and the court refused to compel him to do so. The jury found a verdict for the plaintiff for 9S8 dollars with interest &c. for which the court gave him judgment, and the defendants again appealed to the circuit court.

Upon this second appeal to the circuit court, the question was, whether the county court erred in refusing to ^compel the plaintiff to join in the demurrer to evidence tendered by the defendants? The evidence of the plaintiff set forth in that demurrer consisted of the testimony of several witnesses, who were adduced to prove that Davis, Bullock and Lynch jointly contracted with the plaintiff for the stone work in question; but taking the plaintiff’s evidence alone, and discarding that of the defendants entirely, though the evidence was stronger than that given at the first trial, it was yet plainly insufficient to implicate Lynch as a party to the contract with the plaintiff ; it rather led to the opposite conclusion, that Lynch was nowise a party to it. The circuit court was of that opinion; and, therefore, reversed the judgment of the county court, and again remanded the cause, with directions that the plaintiff should be compelled to join in the demurrer to evidence tendered by the defendants.

In the county court, accordingly, the plaintiff joined in the demurrer to evidence; and a verdict was taken for him, subject to the opinion of the court upon the demurrer. The court gave judgment upon the demurrer for the defendants; the plaintiff appealed to the circuit court, where this judgment was affirmed ; and then he appealed to this court.

Grattan and Stanard, for the appellant.

Johnson, for the appellee.

*

Bills of Exception — Certificate of Evidence. — In Bennett v. Hardaway, 6 Munf. 125, it was held that if a motion for a new trial, on the ground that the verdict is contrary to evidence be overruled, a hill of exceptions to the court’s opinion ought not to state *all the evidence*given in to the jury, but only the/acisappearing to the *court*to have been proved. The principle upon which this decision rests is, that the revising court should have the same lights and act upon the same data as the inferior court, and that it will not undertake to determine what credit should be given to the oral testimony of witnesses, whose credibility it has not the same means of *23testing as were possessed by the court and jury who saw and heard the witnesses testify and observed their whole demeanor. This decision has never been overruled; but, while the principle on which it was grounded has been adhered to, the rule established by it has, by a long line of cases subsequently decided upon, been modified in its application. Danville Bank v. Waddill, 31 Gratt. 475. citing the principal case as one of the decisions which modified the rule laid down in Bennett v. Hardaway, 6 Munf. 125. And in Muse v. Stern, 82 Va. 36, it is said : “But this case (Bennett v. Hardaway), was soon — to adopt the expressive phrase of Carr, J., in Ewing v. Ewing, 2 Leigh 340 — curtailed of its fair proportions. For, by a line of decisions beginning with Carrington v. Bennett, 1 Leigh 340, decided as early as 1829, it was quickly established, as a qualification of the rule, that if the bill of exceptions contains a certificate of the oral testimony given on the trial, the appellate court would review and reverse the judgment, if, after rejecting all the oral testimony of the excepting party, and giving full force and credit to the evidence of the adverse party, the judgment still appears to be wrong. *Rohr v. Davis,*9 *Leigh*30 ; Pasley v. English, 5 Gratt. 141 ; Carrington v. Goddin, 13 Gratt. 587; Gimmi v. Cullen, 20 Gratt. 439 ; Read’s Case, 22 Gratt. 924 ; Danville Bank v. Waddill, 31 Gratt. 469; Dean’s Case, 32 Gratt. 916; Creekmur v. Creekmur, 75 Va. 432; Taylor’s Case, 77 Va. 692. This qualification, while it restricts the operation of the rule laid down in Bennett v. Hardaway, does not contravene the principle of that case. For, as Cabell, J., acutely observes, in Ewing v. Ewing, *supra,*the appellate court does not decide on the credit of the witnesses ; it proceeds on the admission of their credit; “and surely if,’ as a former and distinguished judge of this court puts it, in a lucid article touching this subject, ‘a judgment against a party, after he has been stripped of *all*his own oral evidence, and *all his adversary’s evidence has been accorded fall force and credit, still*appears tobe wrong, that judgment *ought*to be reversed.’ Va. L. J. 1885, p. 259.” To the same effect, the principal case was cited in Patteson v. Ford, 2 Gratt. 30; Pasley v. English, 5 Gratt. 148 ; Farish v. Reigle, 11 Gratt. 719 ; Pryor v. Kuhn, 12 Gratt. 618 ; Vaiden v. Com., 12 Gratt. 726 ; Wickham v. Lewis Martin & Co., 13 Gratt. 431 ; Reed v. Com., 22 Gratt. 927; Gimmi v. Cullen, 20 Gratt. 452; Payne v. Grant. 81 Va. 169; Cluverius v. Com., 81 Va. 866; Moses v. Old Dominion, etc., Co., 82 Va. 28; Newlin v. Beard, 6 W. Va. 127; Morgan v. Fleming, 24 W. Va. 194; State v. Flanagan, 26 W. Va. 120; *foot-note*to Dean v. Com., 32 Gratt. 912.

For further information on this subject, see *footnote*to Vaiden’s Case, 12 Gratt. 717, and *foot-notes*to which reference is there made ; monographic *note*on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887; Va. Code 1887, §3484.

†

Delnurrer to Evidence — Who May Demur — When Joinder in Demurrer Compelled. — Either party, plaintiff or defendant, has a right to demur to the evidence, and the other party will be compelled to join in the demurrer unless the case be plainly against the demurrant, and his object in demurring seems to be clearly nothing else but delay. Clark v. R. & D. R. Co., 78 Va. 713, citing the principal case, Trout v. Va. & Tenn. R. Co., 23 Gratt. 619, Boyd v. Savings Bank, 15 Gratt. 501, Hyers v. Green, 2 Call 556, and Eubank v. Smith, 77 Va. 206. To the same effect, see the principal case also cited in Peabody Ins. Co. v. Wilson, 29 W. Va. 535, 2 S. E. Rep. 892 ; *foot-note*to Boyd v. Savings Bank, 15 Gratt. 501 ; *foot-note*to Trout v. Va. & Tenn. R. Co., 23 Gratt. 619. See further, monographic *note*on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.

‡

Same — Refusal of Court to Compel Joinder. — To the point that it is error to refuse to compel a joinder in demurrer to evidence, where the evidence is not plainly against the demurrant, the principal case and Green v. Buckner, 6 Leigh 82, are cited in Trout v. Va. & Tenn. R. Co., 23 Gratt. 637, 638.

§

 Action on Joint Contract — One Defendant Not a Party — Judgment.—In an action against several defendants upon a joint or joint and several contract, if it appear from the proof that one of the defendants was not a party to the contract, though all the other defendants were parties to it, judgment will be rendered in favor of all the defendants. Steptoe v. Reed, 19 Gratt. 9, citing the principal case, Baber v. Cook, 11 Leigh 606, and Munford v. Overseers, 2 Rand. 313.

PARKER, J.

The cases of Carrington v. Bennett, 1 Leigh 340, Ewing v. Ewing, 2 Leigh 337, and Green v. Ashby, 6 Leigh 135, shew, that the bill of exceptions taken to the opinion of the county court overruling the motion for a new trial, was well taken ; and the judgment of the circuit court reversing the first judgment of the county court, cannot be impugned on that ground. The bill of exceptions did not, it is true, purport to state the facts proved, but only the evidence given ; yet as the *plaintiff’s evidence (throwing out of view all the evidence for the defendants, and admitting that of the plaintiff to be true) was clearly insufficient to support his action, the circuit court was right in directing a new trial.

As to the question whether the plaintiff ought to have been compelled to join in the demurrer to evidence, I take the rule to be, *25that either party may demur, unless the case is clearly against the party offering to demur, and his object appears to be merely to delay the decision. Every case involves questions of law and fact, and a party has a right, admitting the facts which his adversary’s testimony fairly conduces to prove, to bring the question of law arising out of the facts to the consideration and judgment of the court. How he may do this, is a point of practice, settled differently in England and in this country. The english practice is shewn by the cases of Gibson v. Hunter, 2 H. Blacks. 187, and Cocksedge v. Fanshaw, 1 Doug. 119, our practice, by the cases of Whittington v. Christian, 2 Rand. 353, Green v. Judith, 5 Rand. 1, Hansbrough’s ex’ors v. Thom, 3 Leigh 147, Clopton v. Morris, 6 Leigh 278. We permit all the evidence to be spread on the record, reject the demurrant’s evidence where it conflicts with that of the other party, consider such party’s evidence as true, and make all inferences of fact from it which may be fairly and reasonably deduced. But we do not prevent either party from demurring, unless in a case so clear, both upon the fact and law, as to afford some reason for believing that vexatious delay is the object. Now, in the case at bar, there was much room to doubt whether the evidence proved any thing against Eynch, and if it did not, whether the other defendants were liable. It involved the consideration of what acts amounted to a contract with the plaintiff on the part of Eynch, or to a recognition of a previous contract; and the evidence not being direct, but doubtful as to the inferences both of *fact and law properly deducible from it, I think the defendants had a right to demur, and that the plaintiff was properly compelled to join.

Then, upon the demurrer to evidence itself, I am of opinion, that the evidence of the plaintiff, taking it all as true, proves nothing from which the jury ought fairly and reasonably to have inferred a contract with the plaintiff on the part of Eynch ; and that, therefore, the judgment should be affirmed.

The other judges concurred. Judgment affirmed.