124 Va. 333 | Va. | 1919
delivered the opinion of the court.
While all of the work was done in the construction of a sewer and water system upon the property of the defendant at Westhampton, the contracts were let at separate times, under different specifications and upon competitive bidding. They might just as well have been entered into with three separate contractors as with one, and no refer-' ence is made in either one of the contracts to either of the others. They were, therefore, clearly independent and not interdependent agreements. All that is hereafter said must be read in view of this conclusion, which was contested by the defendant in several different methods before the trial court as well as here.
There was, as is usual in such controversies, a sharp conflict in the evidence, which we shall not review, because by the mandate of the statute, under the demurrer to the evidence rule, the defendant is here admitting the truth of all of the contractor’s evidence and all proper inferences therefrom which conflict with its own evidence.
It is only necessary to say, as to this specification, what was said as to the sixth and seventh grounds of demurrer in the case of Newton v. White, 115 Va. 849. 80 S. E. 561, and that is that it is no more than an assertion that the declaration is insufficient in law. The rule which' would apply under section 3271 in cases where the plaintiff moves the court to require the defendant to state the grounds of demurrer, requires that they shall be stated specifically, and that no ground shall be considered other than those so stated. Va. & S. W. Ry. Co. v. Hollingsworth, 107 Va. 364, 58 S. E. 572. The demurrer was submitted without argument, and the defendant did not present to the lower court, either in its demurrer or in argument, the specific ground here relied upon. It was properly overruled, because under section 3272 of the Code, “no defect or imperfection in the declaration, whether it has heretofore been deemed mispleading or insufficient pleading or not, shall be regarded unless there shall be omitted something so essential to the action or defense that judgment according to law and the very right of the cause cannot be given.”
It is claimed that the act of March 27, 1914 (Acts 1914, p. 641), providing that “in any suit or action hereafter instituted, the court may at any time, in furtherance of justice, upon such terms as may be just, permit any proceeding or pleading to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading. The court, at every stage of the proceeding, must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties,” is clearly not permissive but mandatory, as to such amendments, and that the word “may” as first used in that statute should be construed as an imperative.
We cannot agree with this suggestion. It is true that the trial courts must always permit amendments in furtherance of justice, and upon refusal to do so such action may be reviewed by this court; but such amendments are not matters of right, and should not be permitted to delay, impede or embarrass the administration of justice. So far as the amendment to the special plea of set-off refers to
These assignments raise substantially the same questions which wrere presented in various forms during the trial. The defendant claimed that it had the right to set-off and recover unliquidated damages, under Code section 3299, growing out of contract No. 2. This contract had been •fully performed and paid for before contract No. 3 had been let or commenced, and after the work done under contract No. 1 had been substantially performed. This contract No. 2 (as has been previously stated) was in no
We do not, of - course, mean that any improper inspection, either by Carneal & Johnston or by their assistant, could relieve the contractor of the obligation of the contract, but only that Moore having acted as the representative of the architects, by their direction, and with the knowledge and acquiescence of the defendant, the contractor was justified in accepting Moore as the duly authorized representative of the architects during construction. Moore," it must be rememberel, never issued any certificates upon which the payments were based, nor did he ever undertake to approve the completed work.
The vital questions involved are questions of fact. The defendant claimed that the contractor had failed to perform its contract, and that the engineers refused and were justified in refusing to approve and accept the work; and the evidence in the record to sustain these views is most impressive. These claims of the defendant were fairly and sufficiently presented to the jury in the instructions, and they were told that if the work had not been done according to the required specifications and had not been accepted,
Affirmed.