Jury he earned $40 per month as a wheelwright, and that he was earning more at the time of the accident in selling machinery upon commission, though he was unable to state the precise amount of his commissions. The evidence was objected to as remote and speculative, the objection was overruled, and this action of the court is assigned as error.

The evidence was clearly admissible as tending to show that the plaintiff's earning capacity was at least $40 per month when he was disabled by the injuries complained of.

As is so frequently the case in actions of this kind, many more instructions were asked for and given than the questions of law involved in the case required, and more than could be helpful to the jury. The defendant company asked for 15 instructions, of which the court gave 7 as asked, 4 as amended, and refused to give the other 4. It gave for the plaintiff seven instructions. The action of the court in giving the instructions asked for by the plaintiff, except the fourth and seventh, in amending instructions 3, 6, 7, and A, offered by the defendant, and in rejecting defendant's instructions 5, 10, B, and C, is assigned as error.

Instruction No. 1, given by the court at the instance of the plaintiff, is objected to because, as we understand the assignment of error, there was no evidence upon which to base it as to the failure of the watchman to give proper warning as the plaintiff approached the crossing. While the preponderance of evidence is with the defendant on this question, there was evidence tending to show that the watchman gave no warning until it "was too late to do any good." The instruction is also objected to because it contradicts the defendant's instruction No. 12, which told the jury that the running of the train at a greater rate of speed than was allowed by the ordinance of the town "in itself was not negligence in this case which would render the defendant liable." By instruction No. 1 the jury were told, in effect, that in determining whether or not the defendant company was guilty of negligence they could consider the fact, if it was a fact, that the defendant's train was running at a greater rate of speed than was allowed by the ordinance of the town, along with the uther facts of the case.

It has been frequently held by this court that the mere running of a train in violation of law or of an ordinance is not per se negligence for which a recovery can be had; yet It is always a circumstance to be considered, along with the other facts and circumstances of the case, in determining the question of negligence.

Instruction No. 5, given upon the motion of the plaintiff, is objected to because it is in conflict with the said instruction No. 12. By instruction No. 5 the jury were told that the plaintiff in approaching the crossing had the right to assume that the defendant would obey the ordinance of the town, and not run

its train at a great rate of speed than six miles an hour, and, if they believed from the evidence that the train was running at a greater rate of speed, the jury might consider the fact, along with the other circumstances of the case, in determining whether or not the plaintiff was guilty of contributory negligence.

For the reasons given in discussing plaintiff's instruction No. 1, it is plain that there is no conflict between instructions 5 and 12. Instruction 5 is further objected to because the ordinance could have no possible bearing upon the question of the plaintiff's contributory negligence, as he had neither seen nor heard the train.

We know of no reason why a traveler approaching a railroad crossing has not as much right to assume that the railroad company will obey the ordinance of the town, where the train is neither seen nor heard, as where he both sees and hears it. His seeing and hearing has nothing to do with the assumption that the railroad company will obey the ordinance, unless his sight or hear. ing informs him that the company is running its train in violation of the ordinance. In that event, of course, he could not assume what he knew was not a fact.

Instructions 2 and 3, given at the instance of the plaintiff, are objected to because there was no evidence upon which to base them. While the preponderance of evidence is in favor of the defendant's contention that the watchman did his duty in warning the plaintiff of the approaching train, and before he was in peril, yet there was evidence tending to prove (and if the jury believed it sufficient to prove) that the warning was given too late, and but for the plaintiff checking his horse when he heard the watchman's call to stop, or "Go back," he might have crossed the track unharmed.

One of the questions which the jury had to determine was whether or not the plaintiff was guilty of contributory negligence in failing to listen and look for approaching trains after reaching the tower house, which was within 6 feet of the side track, and 19 feet of the main track of the defendant company's road. The contention of the defendant is that, inasmuch as there was no place from where the plaintiff drove into Main street until he reached the tower house where looking could be made effective, it was his duty to look for trains in both directions when he reached that point, and that, if he had done so by leaning forward in his buggy when his horse's head was within 61⁄2 feet of the main track, he could have seen along that track in the direction from which the train was coming which struck him a distance of nearly 800 feet; and that his failure to do so was contributory neligence. The plaintiff, on the other hand, insists that from the time he came into Main street he had been listening for trains, and had looked through the narrow space between the

Thompson house and the tower, the only place where it was possible to see the defendant's track to the north, and neither heard nor saw the train; that the watchman gave no warning and was not in the middle of the street where he always saw him when trains were approaching, which he thought meant that the way was clear; that a wagon just in front of him had crossed the track; that the ordinance prohibited trains from running more than six miles an hour through the town; that, when he passed the tower where he could see, his buggy was on the side track, and his horse's head within six feet of the main track, a place of peril if a train should pass; and that under these conditions ordinary care required him to drive rapidly over the main track, as he was attempting to do when struck by the train.

Whether or not the plaintiff was guilty of contributory negligence in failing to look for trains at that point under the circumstances disclosed by the evidence was a question for the jury. Kimball & Fink v. Friend's Adm'r, 95 Va. 125, 138, 139, 27 S. E. 901.

Instruction 6, given for the plaintiff, and instruction 6, as amended and given for the defendant, fairly submitted that question to the jury.

By the defendant's instruction 3, as offered, the court was asked to tell the jury that the plaintiff should have approached the crossing at such a gait as would have enabled him to stop if warned of an approaching train. The instruction as amended by the court told the jury that the plaintiff should have approached the crossing at such a gait as would have enabled him to stop if warned in time of an approaching train, and, if he did not approach at such a gait, he could not recover. The refusal of the court to give the instruction as offered, and in amending it and giving it as amended, is assigned as

error.

The defendant's Instruction ignored entirely the fact that there was a watchman kept at the crossing to warn travelers of approaching trains. The court did not err in refusing to give it as offered nor in giving it as amended.

The court did not err in refusing to give instruction No. 10, offered by the defendant, which was to the effect that the plaintiff could not recover if by his negligence he contributed to the accident, even if the defendant were guilty of negligence, because upon that question the jury had been fully instructed by the defendant's instruction No. 1.

Without discussing further the action of the court in giving, amending, and refusing instructions, it is sufficient to say that the Instructions given submitted the case to the jury fully, and as favorably to the defendant as it was entitled to have it submitted, and that the court committed no error in refusing to give the other instructions offered by the defendant.

The case was clearly one for the determination of the jury, and the circuit court did not err in refusing to set aside the verdict.

The judgment complained of must therefore be affirmed.

(106 Va. 594)

LEE v. LAPRADE et al. (Supreme Court of Appeals of Virginia. March 14, 1907.)

RESCISSION BY

VENDOR AND PURCHASER
PURCHASER-MUTUAL MISTAKE.

Where, in a suit by a grantee to rescind the contract and recover the purchase money, with interest, it appeared that at the time of the conveyance the grantee believed that he was purchasing the lot which was conveyed to him by the deed, which lot was included almost entirely within the limits of a street, and that the grantor believed that he was selling an entirely different lot, which the grantee had not seen and would not have bought, the grantee was entitled to recover the amount paid by him, with interest, from the date of the writ; it not appearing that he had made any demand so as to authorize the allowance of interest from demand.

CARDWELL, J. The Hyde Park Land Company, in the year 1888, acquired title to a lot of land in the suburbs of the city of Roanoke, had a plat made of its property, laid it off into lots and streets, dedicating the streets to the city, and placed the lots in the hands of real estate agents to be sold. Some of these streets were only designated by a ploughed furrow on either side, but there does not seem to have been anything to indicate the boundaries of the lots. On the map they were indicated by sections and numbers. In 1890 the land company sold one of these lots to one Aunspaugh, trustee, and on January 31, 1890, executed to him a deed purporting to convey the lot, in which deed the boundaries were described as follows: "Beginning at a point on the south side of Loudon avenue 400 feet west of Thirteenth street; thence, with Loudon avenue, north 68 degrees 45 minutes west, 52 and seventenths feet, to a point; thence south 25 degrees west, 130 and three-tenths feet, to an alley; thence, with the said alley, south 68 degrees 45 minutes east, 62 feet, to a point; thence north 21 degrees 15 minutes east, 130 feet, to the place of beginning."

Aunspaugh, by deed bearing date June 25, 1890, conveyed the said lot to George W. La prade; the description being the same as that in Aunspaugh's deed from the land com.

pany. Laprade placed the lot in the hands of one J. F. Wingfield, a real estate agent (who was also a stockholder in the land company), who sold it to C. A. Lee for the sum of $700, and Laprade and his wife conveyed the lot to Lee by deed bearing date October 17, 1890, in which deed it was described identically as in the two aforementioned deeds, with the further recital that it was the same lot conveyed in those deeds. Laprade is a resident of Franklin county, and Lee a resident of Lynchburg, Va.

After purchasing this lot Lee instructed certain real estate agents in Roanoke to sell it for him, but no sale was effected. It was in the summer of 1899, by correspondence, placed in the hands of one J. W. Boswell, a real estate agent, and after a further correspondence, continuing over a period of three years, Lee was informed that the lot described in his deed was squarely in Fourteenth street. Lee then made repeated efforts to get an amicable settlement of the matter with Laprade; but, failing in this, he instituted this suit for the purpose of rescinding the contract of purchase of the lot and annulling the deed conveying the same to him, and for the recovery from Laprade of the purchase money he had paid for the lot, with interest thereon, etc.

The defendant Laprade demurred to the bill, on the grounds that the plaintiff had a complete and adequate remedy at law, and that the city of Roanoke was not made a party defendant. The demurrer was sustained, but the plaintiff was allowed to file an amended bill, which he did, making the city of Roanoke and Laprade's wife also parties defendant, and setting out and alleging more definitely the circumstances constituting the mutual mistake under which Laprade and the plaintiff were laboring when the contract for the purchase of the lot was made. Laprade also demurred to this amended bill, which demurrer was overruled, and he thereupon filed an answer.

With his answer Laprade files and tenders to the plaintiff a deed bearing date June 4, 1904, purporting to convey from the land company and the defendants Laprade and wife the lot which Laprade claims that he in fact sold and intended to convey to the plaintiff, which deed so tendered conveys an entirely different lot from that conveyed to the plaintiff by the deed of October 17, 1890, to wit, a lot with a different number and in a different section of the Rogers and Fairfax addition to the city of Roanoke, and far from answering the description in the deed of October 17, 1890.

The answer of Laprade does not specifically deny the allegation of the amended bill that plaintiff believed that he was buying the lot described in his deed, and that Laprade believed he was selling plaintiff another lot than the one so described, thereby causing a mistake in the transactions concerning the purchase and sale of the lot, but

claims that he (Laprade), through his agent, Wingfield, sold plaintiff another lot than the one described in his deed, to wit, a lot 50 feet west of Thirteenth street; and this is the lot which the deed tendered with the answer conveys, and to which deed Aunspaugh, trustee, was not a party.

Depositions were taken both for the plaintiff and the defendant Laprade, certain letters and other writings being filed with the depositions as evidence, and, upon the hearing of the cause, the circuit court refused to rescind the contract, as prayed for in the original and amended bills, and dismissed the bills, with costs to Laprade, but authorizing the plaintiff to withdraw from the papers in the cause the corrected deed, tendered with the answer of Laprade, for the lot which the court decided that the plaintif had purchased. It is from this decree that the case is brought here on an appeal.

The city of Roanoke filed no answer, as its rights were admitted in the bills and also practically admitted by appellee Laprade's counsel, viz., that the land embraced in Fourteenth street had been dedicated to and was the property of the city of Roanoke.

It is contended on behalf of appellee that the circuit court was without Jurisdiction to grant the equitable relief asked in the bills filed in the cause.

This court is of opinion that this contention is without merit.

In Minor's Institutes (4th Ed.) vol. 4, p. 697, it is said: "In cases of plain mistake or misapprehension, though not the effect of fraud or contrivance, equity will rescind the conveyance, if the error goes essentially to the substance of the contract, so that the purchaser does not get what he bargained for, or the vendor sells that which he did not design to sell." On page 700, the same author says: "Thus, if A. buys land of B., to which B. is supposed to have a good title, and it turns out in consequence of facts unknown alike to both parties he has no title at all, equity will cancel the transaction, and cause the purchase money to be restored to A., putting both parties in statu quo."

To the same effect is Story's Eq. Jur. vol 1, p. 160 et seq.

In Home B. & C. Co. v. London, 98 Va. 152, 35 S. E. 362, it was held that "where a grantor has made a mistake in the description of the property conveyed, which he is unable to correct, and which is material in its charac ter, and affects the very substance of the transaction, the grantee is entitled to have the deed canceled and the purchase money paid refunded."

The relief sought in that case was very similar to the relief asked in this.

In Rogers v. Pattie, 96 Va. 498, 31 S. E 897, it was held that "a vendee of real estate may go into a court of equity on the ground of mutual mistake and recover for land lost, notwithstanding he has the right to proceed at law on his covenants for title." In that

case there was only a misdescription of the property conveyed, but the court refused to rescind the contract because the mistake made did not affect the very substance of the thing contracted for. There was included in the deed in that instance a part of the public highway, which the vendor had no right to sell or convey, but the portion of the land sold by him embraced in the public highway formed only a small part of the land actually sold, and did not materially affect the value of the land which the vendee actually acquired by the deed. Therefore this court remanded the cause, with direction to the lower court to ascertain and allow the vendee just compensation for the land lost by superior title; the opinion saying: "It now being settled in this state that, notwithstanding the vendee's right to proceed at law upon his covenants for title, he has the right to go into a court of equity upon the ground of mistake, and recover compensation. Blessing v. Beatty, 1 Rob. 287; Boschen v. Jurgens, 92 Va. 756, 24 S. E. 390; Hull v. Watts, 95 Va. 10, 27 S. E. 829."

The remaining question is whether, upon the facts proved, the appellant is entitled to the relief asked in his bill and amended bill.

If Wingfield, the agent of appellee Laprade, did, as a matter of fact, show appellant the lot in Fourteenth street and sell it to him, as appellant claims, then he (Wingfield) admittedly did so through mistake, and the contract should be rescinded and the purchase money restored to appellant, thus placing the parties in statu quo, especially in view of the fact that it appears that, even if appellee Laprade's claim that he in fact sold appellant a different lot be true, he does not tender to appellant with his answer a deed conveying a good title to that lot, inasmuch as the title to it came from Aunspaugh, trustee, to appellee Laprade, and Aunspaugh, trustee, is not made a party to the deed tendered. The deed (and only deed, so far as this record discloses) made by Aunspaugh, trustee, to appellee Laprade, conveys the lot in Fourteenth street, and conveys no interest whatever in lot No. 1, section 61, in the Rogers and Fairfax addition to the city of Roanoke, which is the description of the lot conveyed by the deed tendered with Laprade's answer. The lot in Fourteenth street is unmistakably the lot described and conveyed in the deed from Laprade to appellant, and there is no denial of this fact; nor is there any denial of the fact that the land conveyed was prior to the conveyance dedicated to the city of Roanoke as a street; so that the land lost from the lot conveyed affected the very substance of the thing contracted for by appellant, and not merely an immaterial part of such substance. In this we have prima facie proof that appellant's contention was correct, and the burden was on appellee to show as a matter of fact that Wingfield sold appellant a different lot from the one described in the deed.

56 S.E-46

This he has failed to do. Wingfield, testifying in behalf of appellee Laprade, gives as one of his reasons for believing that he showed appellant lot No. 1 in section 61 of the Rogers and Fairfax addition that it was a larger lot than the other lots, and he was anxious to sell appellant a bargain. Upon reference to the plat in the record, which is admitted to be an exact copy of the survey made by Wingate, city engineer of Roanoke, it is seen that this lot is not only no larger than the other lots, but that it is actually smaller-in fact, it is shown to be the smallest lot on the plat. This witness, Wingfield, testifying 14 years after the transactions had with appellant, does not speak in positive terms, but uses such expressions as: "I think so," "If I recollect correctly," "I am still under the impression," etc. That his recollection is poor and his statements unreliable is shown from the fact that he is in error about the very things he states most positively, and upon which he principally relies to bear out his statement that he sold appellant lot No. 1 in section 61 of Rogers and Fairfax's addition. For instance, he says Fourteenth street had been laid off and graded, and had been scraped, and that he could not have made any such mistake unless doing it intentionally; whereas, he is contradicted in this by every witness who testified on the point. The uncontradicted proof is that Fourteenth street was never marked off, except by a ploughed furrow on either side, and that shortly thereafter grass had grown up to such an extent that a casual observer would not take any notice of these furrows. Boswell, a witness for appellee Laprade, and a real estate agent whom appellant had requested to sell his lot, had a survey made of it as described in appellant's deed in September, 1899, and neither he nor the city englneer, who made the survey, discovered at that time that it was a street; and in answer to the question, "At this time, then, no street had been run through this lot? and, so far as you know, no street has been run through it now, is that correct?" said, "That is correct." Hawkins, another witness for appellee Laprade, expressly says that it had not been graded, but was merely indicated by a ploughed furrow. Walker, who at the time of the sale to appellant was working for Wingfield, says: "At that time it [Fourteenth street] was in grass, and the lots adjoining it were in grass." And in answer to the question, "Was there any street opened across it at that time?" said, "No, sir."

We do not deem it necessary to pursue this evidence further. In our view of it the conclusion therefrom is irresistible that appellant believed at the time that he was purchasing the lot which was conveyed to him by the deed of October 17, 1890, which lot is included almost entirely within the limits of Fourteenth street, and that appellee Laprade believed at the time that he was selling to appellant an entirely different lot, which ap

pellant had not seen and would not have bought had it been shown to him, and that the deed of October 17, 1890, by mistake, conveyed to appellant a lot which appellee Laprade had no right to convey; the greater portion thereof having been theretofore dedicated to the city of Roanoke as a street. Under these circumstances, clearly that deed should be set aside and annulled, and appellant should recover from appellee Laprade the purchase money paid therefor.

It appears that the purchase money was paid partly in cash and partly by the assumption of certain debts secured on the lot supposed by appellee Laprade to have been conveyed, and the residue was secured by a deed of trust, and that the deferred payments thus secured, as well as the debts assumed by appellant, were thereafter paid by him; but when these payments were made does not appear from the record.

Upon the question as to the time from which appellant would be entitled to interest on the money which he should recover from appellee Laprade, the authorities cited on his behalf in support of the contention that he should recover interest from the date the purchase money was paid do not apply. They are cases which hold that upon breaches of the warranty of title the vendee is entitled to the amount of the purchase money paid by him with interest from eviction and costs. The principle governing here is that where money has been paid and received under a mutual mistake of fact, and no fraud or misconduct can be imputed to the party from whom the money is sought to be recovered, interest will not be allowed except from the time when the mistake was discovered and demand made. Craufurd v. Smith, 93 Va. 623, 23 S. E. 235, 25 S. E. 657. See, also, 22 A. & E. Ency. L. (2d Ed.) 627, and authorities cited in note.

Among the authorities there cited is Talbot v. Bank, 129 Mass. 67, 37 Am. Rep. 302, in which the opinion says: "Interest on the amount paid by the plaintiffs is recoverable only as damages for the wrongful detention of the money by the defendant. Nothing in the facts agreed shows that the plaintiffs made any demand for the money before bringing suit. Under these circumstances, interest should be computed from the date of the writ only."

In this case the bill alleges, and the allegation is not denied, that the demand was made on the day of - 1903, so that it would not be possible for this court to do more than determine that appellant is entitled to recover of the appellee Laprade the consideration named in the deed of October 17, 1890, namely, $700, and remand the cause to the circuit court, with direction to ascertain the exact date upon which the demand was made by appellant upon appellee Laprade for the return of the said $700, and, upon this being ascertained, to make its decree canceling and annulling the deed of Oc

tober 17, 1890, and authorizing appellant to recover of appellee Laprade the sum of $700, with interest thereon from the date upon which appellant made demand upon appellee Laprade therefor.

It follows that the decree appealed from must be reversed, and the cause remanded to be further proceeded with in accordance with this opinion.

(106 Va. 701)

REID V. RHODES et al. (Supreme Court of Appeals of Virginia. March 14, 1907. Rehearing Denied.)

1. REFORMATION OF INSTRUMENTS-MISTAKE IN DESCRIPTION-PERSONS AS TO WHOM INSTRUMENT MAY BE REFORMED.

A grantee in a trust deed which calls for a tract of 100 acres, but by its description by boundaries and distances not designating so large a tract, acquires no right because of the discrepancy in acreage to have his deed reformed so as to include part of a tract held by one who purchased of the grantor in the trust deed, in good faith, for value and without notice of any right the grantee in the trust deed might have to the tract.

[Ed. Note. For cases in point, see Cent. Dig. vol. 42, Reformation of Instruments, 112.] 2. MORTGAGES-LIEN AND PRIORITY-NOTICE.

A trust deed to land, calling for a tract of 100 acres, but by its description by boundaries and distances not designating so large a tract, is notice of the rights of the parties to the deed, only in the tract within the description, and not in other land necessary to complete the 100 acres called for in the deed. 3. SAME-CONSTRUCTIVE NOTICE.

A trust deed in which the boundaries are all definite and certain except one, and that is made certain by the requirements of the deed as to how the line is to be run establishing it, is sufficient when spread on the records to give notice of the rights of the parties thereto in the land covered by it.

Appeal from Circuit Court, Rappahannock County.

Suit by George W. Settle against John Q. Rhodes and others. Defendants' answer was treated as a cross-bill and Mollie R Reid directed by process issued against her to answer the same. Decree in favor of defendant Rhodes, from which Mollie R. Reld appealed. Reversed and remanded.

R. E. Byrd, for appellant. Gordon & Gordon, for appellee.

CARDWELL, J. The case presented on this appeal is as follows: Geo. W. Settle and wife executed three certain deeds of trust on real estate in Rappahannock county to secure to John Q. Rhodes the payment of several loans of money, viz., September 30, 1891, $2,539; December 22, 1892, $1,000; and December 11, 1895, $1,900. The $2,539 debt secured by the first-named deed was in part a novation of a debt of $1,350 due from Settle to Rhodes secured by trust deed executed by Settle and wife on November 20, 1888, conveying by descriptive boundaries 50 acres of land, a portion of the "old Jordan tract," which Settle had inherited from his