counsel, in the preparation of written instruments; the fact that *ninetenths of the people were participating, in some form, in the gigantic contest then being conducted; it is impossible to say that this innovation upon the common law is not founded upon wisdom and sound policy.

"It would be inconvenient," says Lord Coke, "that matters in writing, made by advice and on consideration, should be controlled by an averment of parties." How is it possible, with any degree of consistency, to apply that principle to a people, three-fourths of whose territory was overrun by invading armies, and whose minds were agitated with perpetual apprehensions of danger? Can it be said that matters put in writing at such a period were made by advice and on consideration? The Legislature has acted upon no such narrow and rigid rule of public policy. It has provided precedented condition of affairs, which should be liberally and beneficially applied by the courts.

and convenience. It is not confined to deeds and instruments of a more solemn 566 nature, but extends to every class of contracts reduced to writing. A mere note of hand can no more be contradicted than a deed. The reason, as stated by a great author, is, it would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth and agreement of the parties, should be controlled by an averment to be proved by the uncertain testimony of slippery memory. It is, however, a mere rule of evidence. It is subject to many important exceptions and modifications, allowed by the good sense of the courts, to meet the exigencies of advancing civilization, trade and commerce. While recognizing the rule as unquestionable, and its authority as absolutely binding, the courts, in many instances, have frittered it away by nice and subtle distinctions, difficult to be understood or reconciled with the rule itself. But, a remedy for evils growing out of an unhowever firmly the rule is established, it may be changed or modified, and 565 *even abolished, by legislative authority. In such case, the law does It has been said that this construction of not impair the obligation of the contract, the statute unsettles the law, and is in conbut resorts to other modes to ascertain what flict with previous decisions. I am not it is. This principle is laid down in Cooley aware that this precise question has been on Constitutional Limitations. It appears before this court directly for adjudication. also that a right to be governed by existing I am confident that no case can be foundrules of evidence is not a vested right. not even the dictum of any judge of this These rules pertain to the remedy which a court-inconsistent with the views here adState gives to its citizens, and are not re-vanced. The cases of Boulware v. Newton garded as entering into or constituting a and Kraker v. Shields have been cited, but part of the contract, or as being the essence those cases did not involve the point now of a right. They are, therefore, at all times under discussion. subject to the modification and control of In Boulware v. Newton, there was proof the Legislature, like other rules affecting that the note in controversy was given upon the remedy, and the changes which are en- a loan of Confederate treasury notes of their acted may be made applicable to existing value at the time of the loan; but no effort causes of action, even in those States where was made, no evidence offered, to establish retrospective laws are forbidden. It has, a parol agreement dehors the writing. Judge therefore, been held that a statute which Rives, in delivering the opinion of the modifies the common law rule excluding court, said the legal construction of the parol evidence to vary the terms of a writ-instrument received no aid from extrinsic ten contract, was not objectionable as ap- evidence. There is not the slightest intiplied to existing causes of action. These mation that such evidence, if offered, would principles received the unanimous approval of this court in the case of Crawford v. 567 Halsted & Putnam, 20 Gratt. 211.

In enacting the statute now under consideration, it seems to have been the intention of the Legislature utterly to abrogate the common law rule which prohibits proof of any contemporaneous parol agreement where there is a written instrument. Instead of perplexing the courts with difficult questions, by confining, or attempting to confine, the operation of the statute to a certain class of contracts, the Legislature probably deemed it best to permit a full investigation in every case, leaving it to the good sense of judges and juries to give due weight to the plain unambiguous writings of the parties.

When we consider the extraordinary condition of affairs created by the war-the perplexity, the anxiety and confusion pervading all classes of society; the want of care, deliberation,' and oftentimes of legal

not have been received and considered. The decision in Kraker v. *Shields, 20 Gratt. 377, was placed mainly on the ground that the vendor, in expectation of a better currency in a short time, expressly refused to sell his land except upon the terms of receiving the deferred instalments in money current when the bonds matured, and these terms were communicated to the purchaser and agreed to by him. In Morgan's adm'x v. Otey, 21 Gratt. 619; Walker v. Page, Id. 722; Meredith v. Salmon, Id. 762, parol testimony was admitted without objection, and relied on to show the real contract and understanding of the parties. These cases, if they have any bearing at all upon the question here, tend strongly to sustain the views now expressed. They are certainly not in conflict with anything I have said. The practice of the courts throughout the State, so far as my observation extends, has been in conformity with this construction. In the

163.
"the

569

meantime, no complaint has been made of It was said in that case, that although the operation of the law, no effort made to facts may be certified by the judge, secure its repeal or amendment, and no ap- still respect should be paid to the peal taken to this court upon the ground of *verdict and judgment of the trying the improper introduction of parol evidence court, because in many cases a fair to affect the written contracts of the parties. presumption might arise that a fact necesThe learned counsel for the plaintiff sary to warrant or repel the inference drawn, seems to have construed the statute in the had been omitted in the certificate of facts; same way. In this very case he himself and because that should be held as rightly not only set the example of introducing determined which the facts do not show to parol evidence, but he allowed the defend- be wrong. It is very clear that in this case ant to do the same thing without objection. the facts certified do not establish that the Neither in his petition, nor his oral argu-case was not rightly determined. See Brugh ment before this court, did he raise any v. Shanks, 5 Leigh, 598; Harnsbarger's question of the kind. The objection was adm'r v. Kinney, 6 Gratt. 287. first made in the opinion of a majority of the judges.

568

I am now satisfied it is better for us-the part of wisdom and sound policy-to retrace our steps, and give our sanction to the general construction of this statute as adopted in the State. Any attempt on our part to distinguish between the cases-to apply the statute to particular contracts-will only confuse and mislead the courts and profession, and fill the docket here with appeals which otherwise would never be taken. *On the other hand, the mischief, if any, resulting from a liberal construction of the statute, is very limited in its character. It is confined to written obligations for the payment of money entered into during the existence of the war, and predicated on Confederate States treasury notes. These are the contracts creating rights and imposing liabilities, perplexing alike to debtor and creditor, within the true intent and meaning of the statute. If this be an unwise and dangerous innovation, the remedy is not in the courts, but in the power that enacted the law.

Conceding, however, that the verdict is not strictly warranted by the evidence, is it the duty of this court, under all the circumstances, to grant a new trial? The opinion of Judge Baldwin, speaking for the court, in Patterson v. Ford, 2 Gratt. 23, is an answer to the question. "The court (he said) may grant a new trial where the verdict is contrary to law or evidence, but the duty of doing so is not in all cases imperative. There are various considerations which may be brought to bear upon its discretion; such as the doubtful character of the question, the hard or unconscionable nature of the action or defence, the belief that the verdict conforms to the substantial justice and equity of the case, and others that might be mentioned." He further says, it is the constant practice of the court to sustain verdicts that attain substantial justice, though not strictly warranted by the evidence or strict adherence to legal principles. In illustration of this principle he cites the case of Wilkinson v. Payne, 4 T. R. 468. In that case the action could only be sustained by the presumption of a legal marriage, of which there was no evi

570

My opinion then is, that the parol evidence adduced in this case was clearly ad-dence; though the fact might have been missible. Being admissible does it sustain or justify the verdict? Judge Anderson has so fully discussed this branch of the subject, I do not deem it necessary to do more than to devote a few moments to the consideration of the evidence. In the first place, it may be a question whether the Circuit judge has stated the facts, or merely the evidence adduced at the trial. It is true, that in the commencement of the bill of exceptions, he professes to certify the facts; but throughout he merely gives the statement of the witnesses; and in conclusion he says this being all the evidence. The judge, however, certifies, that in his opinion the verdict was in accordance with the true understanding and agreement of the parties, and did substantial justice between them, and that while the evidence showed that it was to some extent regarded by the parties as a contract of hazard, the hazard understood and intended, was confined to the fluctuations of Confederate currency. This is the conclusion drawn by the judge as well as the jury, from the evidence, and is, I think, entitled to as much weight as his certificate of the statements of the witnesses; and this upon the principle announced in Slaughter v. Tutt, 12 Leigh,

proved if it had occurred, and all the probabilities were against it. The jury, however, presumed the marriage and found a verdict for the plaintiff. A new trial was refused by the Court of King's Bench. Lord Kenyon, C. J., said: "In the case of new trials, it is a general rule, that in a hard action where there is something on which the jury have raised *a presumption agreeably to the justice of the case, the court will not interfere by granting a new trial where the objection does not lie in point of law. The same principle runs through all the decisions. Applications for new trials are founded upon the supposition that some injustice has been done; and without proof to that effect, it is believed that the applications are invariably denied."

"To induce the granting of a new trial there should be strong probable grounds to believe that the merits of the case have not been fully and fairly tried, and that injustice has been done." See on this subject, 2 Graham & Waterman on New Trials, page 48, where a large number of cases are collected, illustrating this principle: Also, 2 Black. Com. ; 2 Tucker Com. 302.

These rules are laid down with reference

now expressed, are widely different 572 from those which I *have heretofore

to applications made to judges in the infe- | an argument of great length and power, he rior courts, who preside at the trial. They announced an entire change of opinion. apply with much greater force when the He thus concludes: "Some of the opinions appellate jurisdiction is invoked to set aside a verdict approved by the nisi prius judge. In the present case, the claim is to a recovery of $5,000 of principal money, and more than $2,000 of interest, in a sound currency, upon a loan of $5,000 in depreciated paper of the value of $625, at the date of the loan. What is there in such a claim that should induce this court to interfere in its behalf? It is the contract we are told. The jury of the vicinage with the paper and both parties before them in explanation of its provisions, their motives and intentions, have said there was no such contract. The judge who heard the evidence, agrees with them. Conceding that an appellate court has the right to disturb such finding, is it under an imperative duty to do so? I think not. So thinking I will let the verdict stand.

entertained. The revolution has not been effected without a struggle; not that I have for a moment permitted the pride of self-consistency to stand in the path of duty; but because from the very constitution of our nature, we feel a prejudice in favor of opinions long formed and often acted on, which for a time at least, closes our eyes against the light that would show that we have erred. But I am convinced, and I cheerfully retrace my steps, by heartily concurring in the judgment about to be pronounced, and which will restore the law to the solid foundations of good sense and sound reason, on which it originally stood. And Lord Hardwicke says, in Galton v. Hancock, 2 Atk. R. 438, in announcing an entire change of opinion upon a question Much has been said of the inviolability before him, "These are the reasons which of contracts, and of the duty of enforcing induced me to alter my opinion, and I am All this meets my hearty concur- not ashamed of doing it, for I always Not a word has fallen from me at thought it a much greater reproach to a any time, in opposition to this doc-judge to continue in his error than to re571 trine. But I repeat *now what I have tract it." Fortified by such examples, I always said, that I am not inclined, have no difficulty in retracting my error. if I can help it, to award to parties in the present currency, the nominal amount of debts contracted with reference to a highly depreciated Confederate currency. If this be the contract, plain, unmistakable, I suppose we must enforce it, if valid in other respects. But if there be any reasonable doubt as to the true meaning of the parties, that doubt should be resolved in the interests of humanity and justice.

them. rence.

BOULDIN, J. concurred in the opinion of Staples, J.; and he concurred in the opinion of Anderson, J., except that he did not think that the contract looked to the currency received and paid out by the banks at the date of the contract.

CHRISTIAN, J. dissented, and referred to his opinion delivered on the former hearing of the case.

MONCURE, P. concurred in opinion with Christian, J.

Judgment affirmed.

These are my reasons for refusing a new trial in this case. It will be seen they are in conflict with the opinion delivered at the last term; in which I then expressed my concurrence. Upon mature reflection, I am satisfied the views then entertained are erroneous. If there are any disposed to criticise this change of opinion, I can only answer, that no false pride shall constrain me to adhere to opinions when convinced. Rescission of Contract by Parol Agreement.* --By

they are erroneous. Whatever may be my defects as a judge, to persist in conscious error is not one of them. I can afford to be right at the expense of consistency; but I cannot afford to be consistent at the expense of my conscience. In this I am fortified by the example and the teaching of great judges, who have not hesitated to retrace their steps taken in a wrong direction. There is one especially, a man of the purest character and the greatest learning who did not hesitate, on a memorable occasion, publicly to retract the opinions of a lifetime. I allude to Judge Cabell, one of the foremost chancellors of his generation. He was the great representative and advocate of the doctrine of fraud per se, as it was termed. His opinions on this question in various cases, were characterized by the greatest ability and learning. But when the memorable case of Davis v. Turner, 4 Gratt. 422, 471, was before this court, in

573

*Phelps v. Seely & als.

August Term, 1872. Staunton.

article of agreement under seal, S sells to H a lot of land, of which at the time H is in possession as tenant of S. Sometime afterwards, H informs S. that he cannot pay for the lot, and proposes to rescind the contract; which S consents to: and H informs S that P will buy the lot at the same price. *Rescission of Contract by Parol Agreement. The rule laid down in the principal case, that a written contract creating an equitable lien, may be rescinded by a subsequent parol agreement partially acted on or fully performed is followed as authoritative in several subsequent cases. See Jordan v. Katz. 89 Va. 630, 16 S. E. Rep. 866; Ballard v. Ballard, 25 W. Va. 473.

In Straley v. Perdue, 33 W. Va. 375, 10 S. E. Rep. 784,

the court saying: "In the case of Minor v. Edwards. 12 Mo. 137, it was held that 'an acceptance of a deed of inferior value to such a one as the grantee is by his contract entitled to, as a compliance with such a contract, is equivalent to a waiver of such better title,'" cites the principal case, and Jarrell v. Jarrell, 27 W. Va. 743.

In October 1866, Mary A. Seely brought her suit in equity in the Circuit court of Augusta county, against Rachel Phelps and others purchasers from her, to enjoin the defendants from taking possession of a lot of ground in Staunton, and to redeem what she alleged was intended to be a mortgage upon the lot. The bill stated that about 2. Same-Estoppel.—The sale to P having been at the plaintiff, purchased of A. H. H. Stuart the year 1846, Horace Seely, the father of

*Resulting Trust Established by Parol Testimony-Phelps, an elderly widow lady, possessed of Absolute Deed a Mortgage. The principal case is cited and followed by many subsequent ones as authority for the proposition that a resulting trust may be established by parol testimony. But the evidence, to produce such results, must be clear and unques

In Troll v. Carter, 15 W. Va. 582, the court citing the principal case, and many others, said: "So, too, all the authorities agree that an equitable claim of 575 any sort, and especially one which depends on parol testimony only, will not be recognized after great lapse of time, during which time it has been ignored, where no satisfactory reason can be assigned for not setting up the claim sooner. And that this is more especially true when the equitable claim is of a character which required clear and explicit evidence to sustain it; such lapse of time itself rendering the evidence, which might other wise have been regarded as sufficiently clear and explicit, unsatisfactory."

Seely having failed to pay the notes, Grove recovered a judgment against him, and he was taken in execution, under writs of ca. sa. and committed to jail. These executions were issued May 7th, 1845. About this time respondent came to reside in Staunton. Shortly after her arrival she learned the distressed condition of Seely 578 *made a tender to respondent of the and his family, and became interested in his behalf. Upon a conference with him it was agreed that Seely should abandon his contract with Mr. Stuart, and that respond-one years. ent should become the purchaser from Mr. Stuart; she agreeing to give her bond to Mr. Stuart for the purchase money and unpaid interest, then ascertained to be $440, and also to pay off the debts due to Grove, including costs and jail fees. Respondent's