88 Va. 201 | Va. | 1891
delivered the opinion of the court.
This is an action to recover damages for the failure of B. H. Gray, the defendant below, to deliver fifty shares of the ■ capital stock of “ The Salem Land Company.” There was a demurrer to the declaration, which, we think, was properly overruled. The demurrer is general, and in such case the familiar rule is, that if any one count be good, the demurrer must be overruled. Hollinsworth v. Milton, 8 Leigh, 50; Ferrill v. Brewis’ Adm’r, 25 Gratt. 766; 4 Minor, 895. And in this case all of the counts appear to be good.
But it is contended that, admitting all the counts to be good in form and substance, that the two first counts are in case* and the third in assumpsit, and, therefore, there is a misjoinder of counts. 4 Minor, 366. To this we cannot assent, for the two first counts tried by all the tests are as plainly counts in assumpsit as is the third. 4 Minor, 577, 578. The mere fact* therefore, that the plaintiffs in the first count say that “ complain of It. IT. Gray, defendant, of a plea of trespass in the ease,” instead of trespass on. the case in, assumpsit, cannot change the form of the action nor affect the result upon this demurrer. 9 Gratt. 183.
It is also insisted on behalf of the plaintiff in error that even if this action is in assumpsit, that there has been no proper issue made, and no proper trial, because the plea of “ not guilty ” was the only one entered. But this position is not tenable. It is plain that a fair trial of the case has been had; all the facts and circumstances of the case have been inquired into; and a verdict and judgment has been rendered for the plaintiffs, and the court will not now allow the defendant the benefit of his own mistake, and award a repleader. While the
So much for the questions arising upon the form of the pleadings.
How upon the merits, the correctness of the judgment seems equally clear. The facts of the case seem to be these : That on the 20tli of Hovember, 1889, the defendant Gray stated to one of the plaintiffs, Kemp, that he had one hundred shares of stock in the Salem Land and, Improroneut Company, and wished to know- if he would purchase the same. To this offer Kemp made no direct reply. Later in the same day Gray came to the office of Kemp, and whilst he declined to sell the whole one hundred shares, he agreed to sell Kemp, who was acting for himself and Helson, fifty shares at $3.50 per share, and the next morning he presented to Kemp the order for' the transfer, who accepted the same, and gave Gray his check for the purchase price of $175. This order was taken to the Secretary of the Salem Land and Improvement Company to have the transfer made to Kemp and Helson, when the Secretary said that Mr. Gray did not have any stock in the company. Gray was subsequently repeatedly requested to deliver the stock “before it rose higher,3’ and promised to do so, but failed, and finally offered to refund the money he had received, which Kemp and Helson declined to receive. ’ He now claims that he did not sell fifty shares of stock, but only “ his inter
Judgment affirmed.