Priest v. Whitacre

Citations

• 78 Va. 151
• 1883 Va. LEXIS 22

Syllabus

<p>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.</p> <p>2. Idem-Instructions.-No instruction is proper unless there is evidence before the jury to which it is relevant.</p> <p>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.</p> <p>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.</p> <p>Held :</p> <p>1. T was under no obligation to explain the appearance of alteration.</p> <p>2. Instructions directing jury to found their verdict on such appearance of alteration are irrelevant and improper.</p> <p>3. On the facts proved the verdict for T will not be disturbed on account merely of such appearance of alteration.</p>