110 Va. 810 | Va. | 1910
delivered the opinion of the court.
As the record of this case appeared when before this court on a former occasion (107 Va. 63, 57 S. E. 592), defendant in error, as the assignee of one C. F. Hodgman, brought his action of debt on a negotiable note for $790, payable, as appeared on its face, on demand and past due, without mating any reference whatever in his declaration to a written agreement introduced in evidence at the trial, made and signed by the parties to the transaction at the same time the note was executed by the drawers, the agreement being made a part and parcel of the note, to which it was attached, and set forth that the payee of the note would not demand the payment of the note except and until sale was made of thirteen certain lots of land, >r some part or parts thereof, but would “only demand payment of such and all sums as may be realized upon a sale of said lots of land, in whole or in part, as the same may be sold.” The note sued on, and the agreement attached thereto, are set out in the opinion of this court at the former hearing of the case and need not be repeated here.
This court then held that the note and the agreement attached thereto, made at the same time, and the latter in terms expressly declaring that it was executed as part and parcel of the note, constituted the contract between the original parties to them, and that they showed upon their face that the contract was not to pay money on demand, but only on certain conditions; and that the defendant in error only acquired such rights by their endorsement and delivery to him as the payee of the note had; therefore, the judgment of the trial court for the full amount
When the case went back the declaration was amended, and • contains two counts. The first count sets out the note and the agreement as a part of it, and alleges “that the defendants have made sale of and conveyed all and every part of the said lots of land set out and described in said agreement and contract, whereby and whereupon the said writing obligatory or note became and was due and payable.” The second count is a count in assumpsit, claiming damages by reason of the failure of plaintiffs in error to exercise due diligence in making sale of the lots of land.
There was a demurrer to this amended declaration and to each count thereof, which was sustained as to the second count, but overruled as to the first; and the overruling of the demurrer as to the first count constitutes plaintiffs in error’s first assignment of error.
The proposition is too elementary to need citation of authority for its support, that the action of debt will only lie for the recovery of a certain sum of money, due by a certain and express agreement. But if it could be conceded (which it is not) that this rule could be so relaxed, as counsel for defendant in error argues it should be in this case, that what is claimed depended on a contingency and that contingency having happened, the action of debt will lie to recover the sum of money thus becoming due, still the question remains whether or not the first count of this declaration sets out a cause of action entitling defendant in error to a recovery of the amount of the debt sued for, or any part thereof.
That the note and contract were not for a sum certain, but for an uncertain sum, payable at an uncertain time, and then' not only conditioned on a sale of all or a part of the lots of land being made, but upon the purchase money therefor being re
We are of opinion that the lower court erred in not sustaining the demurrer to the first count of the amended declaration, as well as to the second; and in view of the fact that the defendant in error filed an amended declaration, in which he restated his cause of action in the light of the opinion of this court when the case was before it, as above stated, and which opinion clearly set forth that the right of recovery on the note was conditional only, and with equal clearness and precision indica¿ted that no cause of action on the note and agreement, which evidenced the contract between the parties thereto, could be maintained unless the conditions upon which payment on the
Reversed.