81 Va. 164 | Va. | 1885
delivered the opinion of the court.
This is a writ of error to a judgment of the circuit court of Fluvanna county, in an action of assumpsit wherein a verdict was rendered in favor of Beverly Grant, the plaintiff below, for the sum of $1,500.
The two first counts of the declaration were special. The first sets out under a “whereas” that the plaintiff had been and was at the time of the agreement in the said count mentioned engaged in exploring lands of various parties for the purpose of discovering gold thereon, and opening and developing the veins so discovered by him with a view to the sale of said lands for gold mining purposes, in which business he had experience; that in the course of his business aforesaid, he made a contract with a certain William A. Allen, and afterwards with his widow, Henrietta Allen, and with his mother, Louisa G. Allen, by which the Allens agreed to permit him to explore their lands in the county of Goochland for gold, agreeing that said permission and right should not be limited as to time, and that he should have a one-third interest in any veins of gold which should be found; that in pursuance of this agreement he discovered a number of valuable veins of gold on said lands, and expended large sums of money in opening and developing the same in the lifetime of
To these counts the defendant filed a demurrer. The grounds of demurrer are not stated, and, upon a careful consideration of the declaration, we are unable to perceive any. As has been said in the brief of counsel, each of these counts aver a distinct promise, a valuable consideration for the promise, and a breach of the promise. The action is founded on the promise, and not on the Allen contracts. The Allen contracts are referred to as an inducement, or, rather as one of the considerations for the promise declared, but apart from the Allen contracts a sufficient consideration for the promise is furnished by the services which the plaintiff afterwards rendered the defendant in aiding and assisting him to develop and sell the property as gold mining property, anu this consideration is fully set out in each of these counts. The demurrer was, therefore, properly overruled.
. Now, whilst the contract itself must be truly set out in every declaration in assumpsit, yet it is well understood that, for purposes of pleading, there is no difference between an express and an implied contract, and that in every case, where the agreement is not in writing, the same identical words of description are employed to describe an implied as well as an express promise ; and it follows, therefore, that in this case the promise declared on may be established by proof of a contract, express
The next inquiry which logically arises is, whether the contract stated in the declaration is made out by the evidence. There is no certificate of facts proved in the case, for the reason, as the court states, that the evidence was conflicting, and it therefore declined to certify the facts; and as the defendant, recognizing the well-settled rule that where there is a certificate of evidence only this court rejects all of the parol evidence of the exceptor, did not ask to have his parol evidence certified, we have only a certificate of the evidence for the plaintiff. Ewing v. Ewing, 7 Leigh, 337; Green v. Ashby 6 Leigh, 135; Rohr v. Davis, 9 Leigh, 30; Pasley v. English, 5 Gratt. 148; Noyes v. Humphreys, 11 Gratt. 651; Read’s Case, 22 Gratt. 924; Gimmi v. Cullen, 20 Gratt. 439; Dean’s Case, 32 Gratt. 912; Baccigalupo’s Case, 33 Gratt. 811; Dangerfield v. Thompson, 33 Gratt. 141; Creekmore v. Creekmore, 75 Va. R. 433; Taylor’s Case, 77 Va. R. 697.
The only testimony which bears directly upon the question as to what the contract was is that of the plaintiff himself. But giving-to this testimony the credit to which it seems to be entitled, an express agreement on the part of Payne to allow the plaintiff one-third of what the land should sell for above the price he gave for it, in payment for his services in developing the veins of gold and in assisting in the sale of the land, seems to be fully established; for he says that on one occasion when he had carried a man named Leason to see the property, and after the three, Payne, Grant and Leason “had made a cut ” at their joint expense, that he asked Payne if he disputed his interest, and that “ Payne replied that he did not, but that he should have one-third interest in the sale of the land over and above what he (meaning the defendant) gave for it.” Now this is a clear
If, however, we are mistaken in this view, and no express contract was made between these parties, it seems to us clear that the acts and words of these parties raise an implied contract. The intention of parties to any particular transaction, says a learned writer, may be gathered from their acts and deeds, in connection with surrounding circumstances, as well as from their words; and the law, therefore, implies, from the silent language of men’s conduct and actions, contracts and promises as forcible and binding as those that are made by express words, or through the medium of written memorials. 1 Addison on Contracts, § 30, 31.
And another author of distinction, treating on this subject, says: “ The proposal or acceptance of an agreement may be communicated by conduct as well as by words; and proposals and acceptances so communicated are governed, as near as may be, by the same rule as if made in express words. * * *
“ A promise made in this way is said to be implied. It seems to us preferable, however, to use the word inferred, to distinguish the real though tacit promise in these cases from the fictitious promise ‘implied by law/ as we shall immediately see, in certain other cases where there is no real contract at all, but an obligation quasi ex contractu,” Pollock’s Prin. Contracts, 28.
In the present case, the evidence clearly establishes that the plaintiff rendered the services required of him; that a part of them were rendered after the defendant had promised to pay him one-third of the price for which the land should sell after deducting the price he paid for it; and that the services of the plaintiff contributed in some degree to bringing about the sale. And, under these circumstances, we think the jury would have been-justified in inferring a contract to pay the full amount proposed by the defendant. The verdict is, therefore, amply sustained by the evidence, and the court below acted properly in refusing to set it aside.
The next assignment of error to be noticed is that the court below improperly excluded two special pleas—viz: the plea of the plaintiff’s bankruptcy, and the plea of res adjudicata, which, at the proper stage of the proceedings in this case, were offered to be filed by the defendant. As to the first of these pleas, it need only be said that the promise declared on in the declaration was made in the year 1875, whilst the plea avers .the bankruptcy of the plaintiff in 1868. It is plain, therefore, that the plaintiff’s right of action, founded on a contract made
And as to the plea of res adjudicata, it seems to us to have been properly excluded. The defendant, as the record shows, brought into court the record of the suit, in which the plea averred the matter had been decided—viz: the record of a chancery suit prosecuted in the circuit court of Goochland, on a bill of interpleader, filed- by William Brandeth (the purchaser from the plaintiff in error of the land, the right to a part of the proceeds of sale of which has given rise to the present suit), and a cross-bill therein filed by the plaintiff, Grant. And the decree made in said cause at the April term, 1879, is the adjudication alleged in the plea. Upon an inspection of that decree it will be seen that it contains the following language: “ On consideration whereof the court, without considering anything else, is of opinion that the defendant’s demurrer to the plaintiffs bill is insufficient, and doth therefore adjudge and order that the plaintiff’s bill be dismissed. * * * * But this decree shall be without prejudice to the plaintiff as to any other action he may be advised to take in this or any other forum, and he has leave to file any proper amended bill, if he shall be advised to do so, within sixty days.”
Conceding, then, for the purposes of the argument, that the claim asserted in that cause is the same declared in this suit, the reservation of the right of action contained in the decree mentioned above must prevent that decree from being a bar to this suit.
In Story’s Equity Pleading, section 456, we find the law upon the subject stated as follows: “Demurrers, though sometimes for dilatory causes, in the nature of a plea of abatement, are .always, in legal effect, in bar of the suit praying for a dismissal of it. But there is this difference, that where the suit is dismissed upon a hearing upon the merits, it is ordinarily,
As to the other assignments of error, it seems to us to be unnecessary to say more than that we have carefully considered them all, and find no error of which the plaintiff in error could justly complain. But we may also add that if there were any error in the giving or refusal to give the instructions referred, to in certain of these bills of exceptions, or in the admission or refusal to admit certain evidence mentioned in other bills of exceptions, that as the verdict is manifestly right, the defendant could not have been prejudiced thereby, and therefore such error, - if any, was committed, can afford no ground for a reversal of the judgment complained of. Bright-hope Railway Co. v. Rogers, 76 Va. R. 443; Danville Bank v. Waddill, 27 Gratt. 448; Harman v. City of Lynchburg, 33 Gratt. 43; Kincheloe v. Tracewells, 11 Gratt. 589; Colvin v. Menifee, Id. 87.
The judgment of the circuit court is therefore affirmed.
Judgment affirmed.