140 Va. 445 | Va. | 1924
Lead Opinion
delivered tbe opinion of tbe court.
Tbe plaintiffs in error sold to tbe defendants in error certain felting machinery for $2,900.00, of wbicb $300.00 was paid in cash, and for tbe residue notes were given, payable as follows: . $1,000.00 at six months, $1,000.00 at twelve months and $600.00 at eighteen months. They also sold to tbe defendant certain arti
This action of the court is assigned as error. The plaintiffs did not claim that the amendment necessitated any new evidence on their part and did not ask for a continuance. Courts are liberal in the allowance of amendments of pleadings in furtherance of justice, and will not reverse a case for formal defects in procedure if the substantial rights of litigants have not been prejudiced thereby. Code section 6331 and revisors’ note thereto; Rinehart & Dennis Co. v. Brown, 137 Va. 670, 120 S. E. 269. There is no reversible error in the ruling of the trial court.
A motion by the plaintiffs to set aside the verdict was overruled, and judgment was entered thereon.
The evidence on the issue made by the special plea, and also on a number of the items of setoff,was very conflicting. It is conceded, however, by counsel for the defendant in error, that the verdict of the jury was a finding for the plaintiffs in error on the issue made by the special plea, to-wit: Fraud in the procurement of the contract for the sale of the machinery. This finding cannot be disturbed as the jury were the judges of the weight and credibility of the testimony.
The list of setoffs contains many items, among them the $2,600.00 of notes aforesaid, which are not setoffs at all, and should be stricken from the list, leaving $3,143.29 of setoffs claimed. Of these the jury allowed the defendant in error $2,305.66, but outside of the one item of $181.86 mentioned in the verdict, it is impossible to tell which items were allowed and which were not.
The contract for the sale of the machinery stated that the plaintiffs in error had sold to the defendants in error machinery seen by R. L. Longworth, the buyer for the said firm, to the amount of $2,900.00; partial payment made on this purchase of $300.00; the balance of the payments to be made without interest, $1,000.00 six months from date, $1,000.00 twelve months from date,
As the sale was f. o. b. shipping points, the defendant in error concedes that, under the verdict of the jury, the “items of $300.00 cash payment on the machine and $128.40 freight on the same” cannot be recovered, and must be eliminated from the list of setoffs.
The machinery was damaged in transit to the extent of $330.96. Under the terms of the contract the plaintiffs were not liable for this item, as there is no evidence that they were in any way responsible for safe packing or securing the machinery on the car.
As to the items of $600.00 for a picker, $50.00 for small repairs, $500.00 for loss of time of manager, and $36.00, $68.06, $562.56 and $194.64 for the price of felt sold, the testimony is conflicting, or the value thereof is uncertain, and we are unable to tell from the verdict, or settle • from the testimony, the amount that was or should have been allowed therefor. There are also a number of smaller items of setoff in respect to which we are unable to determine the findings of the jury.
There is also an item of $565.60 paid for ticking never ordered by the defendant and never received by it, but lost in transit and which it paid for. Whether or not the plaintiffs in error or the defendant in error should sustain this loss is dependent largely upon the contract between the parties to be implied from their course of dealing with each other, and from their conduct after the loss. How the jury found as to this item we have no means of knowing, and the testimony on the subject is not of such nature that we should venture an opinion on the subject.
The rulings on the several items of setoff above mentioned renders it unnecessary to pass specifically on other instructions granted or refused.
The judgment of the trial court will be reversed, the verdict of the jury set aside and the case remanded to the circuit court with directions to consider the plaintiffs’ claim as established for the sum of $2,841.41 with legal interest from April 28, 1923 (the date of the former verdict), and to strike from the defendant’s- list of setoffs the items of $2,600.00, $300.00, $128.40 and $330.96, hereinbefore mentioned, and to empanel a jury to determine what credit, if any, the defendant in error is entitled to receive by reason of the other items of set-off mentioned in the list filed.
Reversed.
Rehearing
On a Petition to Rehear,
The petition to rehear is granted in this case to enable the court to modify the judgment formerly entered in the case. But as the modification relates entirely to setoffs filed by the defendant, and the former order remanded the case to the trial court “to empanel a jury to determine what credit, if any, the defendant is entitled to receive by reason of the other items of setoff mentioned in the list filed,” further argument of the case in this court is deemed unnecessary.
It is also claimed that the $181.86 mentioned in the opinion as damages to machinery specifically allowed by the verdict of the jury constitutes a part of the item of $330.96 mentioned in the opinion as damages to machinery in transit.
In order to allow the jury to pass on these two items, as well as “the other items of setoff mentioned,” the former opinion and judgment will be modified to this extent: “The judgment of the trial court will be
reversed, the verdict of the jury set aside and the case remanded to the circuit court with directions to consider the plaintiff’s claim as established for the sum of $2,600.00 with legal interest from April 28, 1923 (the date of former verdict), and to strike from the defendant’s list of setoffs the items of $2,600.00, $300.00, $128.40 hereinbefore mentioned, and to empanel a jury to determine what credit, if any, the defendant in error is entitled to receive by reason of the other items of setoff mentioned in the list filed.”
As to other matters mentioned in the petition to rehear, the court adheres to its former opinion and judgment.