118 Va. 625 | Va. | 1916
delivered the opinion of the court.
From the point of view of a demurrer to the evidence, the essential facts of this case are these: Plaintiff in error, Kanter, (who was defendant below), for several years prior to 1912 had been engaged in the retail liquor business in the city of Norfolk, where for some violation of the statute his license was revoked. Thereupon, Kanter, in association with his brother-in-law, Kesser, and one Hice, organized and had incorporated the South Norfolk Liquor Company, and through the agency
The plaintiff in error seeks to escape liability on two grounds:
1. That the sale was made to the South Norfolk Liquor Company, Incorporated, and that Kanter was not liable therefor under the statute of frauds, because his promise to pay was not in writing.
That issue of fact was submitted to the jury upon correct instruction, and, upon conflicting evidence, having been resolved in favor of the plaintiff, the finding of the jury is conclusive. Kanter’s liability being positive and personal, not contingent and collateral, the transaction was not within the statute of frauds. 2 Va. L. Reg. 465; Hopkins v. Richardson, 9 Gratt. (50 Va.) 485; Noyes' Ex’x. v. Humphreys, 11 Gratt. (52 Va.) 636; Wright v. Smith, 81 Va. 777; Skinker v. Armstrong, 86 Va. 1015, 11 S. E. 971.
2. That if the sale was made to Kanter, with knowledge that the liquor was to be resold by him in violation of the statute, plaintiff could not recover.
The jury having so . found, upon proper' instructions and sufficient evidence, and their verdict having been sustained by the trial court, on familiar principles, it cannot be disturbed in this court.
We are of opinion that the judgment should be affirmed.
Affirmed.