86 Va. 1011 | Va. | 1890
delivered the opinion of the court.
The facts of the case, as alleged by the plaintiff, and not contested by the defendant, are set out in the declaration as
To this declaration the defendant, on the 8th day of September, 1880, filed a general demurrer, in which the plaintiff joined. On the 16th of January, 1889, the demurrer was argued, and “it seemed to the court that the said declaration is sufficient in law for the plaintiff to have aud maintain his action against the defendant; whereupon it is considered by the eoui’t that the said demurrer be overruled.” The defendant pleaded non-assumpsit and non-assumpsit within fire years, and issues were joined upon these pleas. On the 14th day of February, 1889, the cause wras tried by a jury, who rendered, on the 15th day of February, 1889, a verdict for the plaintiff', and assessed his damages in the sum of $1,343 78, with interest from the 1st of January, 1879, till paid. The defendant moved the court to set aside the verdict and to grant a new trial of the case; which motion the court overruled, and rendered judgment upon the said verdict for the said sum of $1,343 78 and interest as aforesaid, and costs. Whereupon the defendant obtained from this court a writ of error and supersedeas.
The facts stated in the declaration are admitted by the demurrer, and the only errors assigned are the overruling of the demurrer and the judgment of the court upon the verdict. The sole question to be decided by this court, upon the record,
The only ground of the demurrer, as stated in the defendant’s brief, was: 1st. That the alleged assumpsit, as presented in the declaration, was without consideration—a nudum pactum.
2d. That the alleged promise and assumpsit of the defendant, Skinker, was a promise to answer for the debt of another, and as such, not being in writing, it was within the operation of the Code of Virginia, 1887, sec. 2840, and void; and that, therefore, the demurrer to the declaration might to have been sustained and the suit dismissed. We are of opinion that the judgment of the court overruling the demurrer was ri_ht.
It was not necessary to aver in the declaration that the promise of Skinker, the purchaser of the land, was in writing; that was a question of fact, to be determined by plea and proof in a proper case. 1 Chitty’s Pleading, 882; Browne on the Statute of Frauds, sec. 505; Green on Pleadiug and Practice, sec. 508; Wait’s Actions and Defenses, vol. 7, 55, 56, sec. 3; Marston v. Sweet, 66 N. Y., 209; Walsh v. Kattenburg, 8 Minnesota, 131; Wakefield v. Greenhood, 29 Calif., 599, and cases cited.
Non constat, that, in this case, the promise was not in writing. The presumption, in the circumstances detailed in the declaration, is that it was in writing. The payment promised was of part of the purchase money for the undivided moiety of the 1,000-acre tract of land, and was part of the contract of the sale of said land between the trustee, Spilman, and Skinker, the buyer; and it was part of the consideration for the conveyance of January 1, 1879. The deed is not in the record; but it would be a violent presumption to assume that the terms of sale agreed on by the trustee and the buyer were not specified in the deed. But, even if it were not, this promise, sued on, does not come within the statute of frauds, Code of Virginia,
There is no pretence by the defendant, that this application of so much of the purchase money to he paid by Skinlcer for the land, was made without James’ authority; and the very delay, until the amount Armstrong had paid for James, and for which he had a right to be reimbursed, by substitution to
We are of opiuion that there is no error in the judgment of the circuit court, as presented by the record, and our judgment is to affirm the same.
Judgment aeeirmed.