96 Va. 14 | Va. | 1898
delivered the opinion of the court.
The error complained of on this appeal is the construction which the Circuit Court of Alexandria county placed upon the decree entered in the cause on the 9th day of July, 1894, in so far as it fixed the amount which Tyrer, the appellee, was entitled to recover from O’Gorman. After the decree of July 9, 1894, was rendered, an appeal was taken to this court, and that decree affirmed.
The case is reported in this volume (ante p. 5), and the facts so far as they are necessary to a decision of the question involved in this appeal are fully stated in the opinion of the court.
In order to decide the questions involved in the former appeal it was necessary to ascertain how much, if anything, Tyrer was entitled to recover from O’Gorman on account of his unauthorized sale of Tyrer’s property. In discussing that question, the court said: “He” (Tyrer) “therefore became equitably entitled to one-tenth of the consideration received by O’Gorman from the Potomac Electric Company, to-wit, one-tenth of the $25,000 of its capital stock and $50,000 of its bonds, aggregating $75,000; but these having been appropriated by O’Gorman to his own usej Tyrer was entitled to recover from him one-tenth of their value, to-wit, $7,500. The Circuit Court so decreed, and in this there was no error.”
Whilst the decree of July 9, 1894, does contain expressions which give color to the construction put upon it by the appellant, the construction given it by this court, as above quoted, is clearly correct when the whole decree and the record upon which it is based are looked to. Any other construction would have been contrary to the law upon the facts of the case, and would have required a reversal instead of an affirmance of the
A petition to rehear the case was filed in this court upon the former appeal. One of the grounds relied on for a rehearing was that the court had committed the same error in construing the decree of July 9, 1894, as is now relied on for reversing the decree of the Circuit Court upon this appeal. After mature consideration a rehearing, was denied. The question raised by this appeal being necessarily involved upon the former appeal and expressly raised upon the petition to rehear must be regarded as res judicata; but if it were not, we are of opinion that upon the facts of the case, as they appear from the record, Tyrer was entitled to recover from O’Gorman $7,500, that being one-tenth of the face value of the stock and bonds received by O’Gorman for the property, there being nothing in the record to show that the stock and bonds so received by O’Gorman and appropriated to his own use were not worth their face value. If they were not worth that much
The decree complained of must be affirmed.
Affirmed.