82 Va. 657 | Va. | 1886
(after stating the case), delivered the opinion of the court.
■ Though amplified by numerous bills of exception, the question to be determined by this court is within a very narrow compass. It is simply whether, in view of the contract between the parties and the evidence adduced before the jury, the plaintiff is entitled to recover. There could be no difficulty in answering this question negatively, as the jury answered it, if the trial court did not err in the rulings excepted to at the trial.
At the trial the plaintiff introduced in evidence, without objection by the defendant, the said agreement between the parties of April 26, 1882, upon which the action was founded, and then introduced a witness, W. W. George, and asked him this question: “State if you met O. T. Smith and O. D. Carter at your barn lot in May, 1882, at which time and place C. D. Carter was negotiating with C. T. Smith, as ageht for Thomas
Moreover, had the alleged conditional contract of sale between the plaintiff and C. D. Carter even been in writing, the defendant could not have been required to accept and act upon it, because it contained the stipulation in Carter’s behalf that bound him only in the event the tract of land, when surveyed, should contain not less than 400 acres exclusive of the mountain land, while the agreement authorized no such conditional sale, but expressly authorized the sale of the whole at not less than $20,000, whether it contained four hundred acres
The plaintiff’s exceptions, Nos. 2 and 3, are to similar rulings of the trial court rejecting evidence offered to sustain said first alleged breach. It is useless to notice them further than to say the court below ruled correctly in each case.
The plaintiff’s bill of exception No. 4, is to the action of the court refusing to permit the said letter of the defendant to the plaintiff, dated “Long Hollow,” October 11th, 1882, declining to continue his land longer in the hands of the plaintiff, as agent, for sale, except as to the second breach laid in the declaration.
There was certainly no error in this ruling prejudicial to the plaintiff. If any error was committed, it was in permitting the letter to go in evidence for any purpose. It certainly does not even tend to prove said second breach as laid, which is, that the plaintiff was dismissed from the agency created by the agreement between the parties. It is impossible to give to the defendant’s said letter any such effect. The agency as to the land had expired, and the letter was written by the defendant in answer to a letter to him, written by the plaintiff just a few days prior to the expiration of the agency as to the land, asking for an extension of the period of the agency, which the
The plaintiff having thus given in evidence the agreement of April 26th, 1882, and the said letter of the defendant of the 11th of October, 1882, and the court having refused to admit certain other evidence offered by him, and referred to in his six previous bills of exception, rested his case; and the defendant, to0 sustain the issue on his part, read to the jury the following correspondence, consisting of a postal card and letters from the plaintiff to him, in the words and figures following, to wit:
“Saltville, Va., August 23d, ’82.
“Thos. G. Tate, Esq.,
“Dear Sir,—Owing to the failure on your part, aided by my persistent efforts to get your land surveyed, I have been unable to sell it; and if it had been surveyed, as called for in the contract between you and me, I am quite sure I would have sold it. So neither of us are to blame for results. Monday last, in Marion, I saw General Greever for the fourth time about it, and he regretted that he had been unable to make the survey, but said he would do it early in September.
“ My authority to sell your land expires the 1st September, but I think, under the circumstances, especially as I have found five persons who want parts of it, and two who will buy the whole, I think you will not hesitate to give me until December 1st to complete or try to complete the sale of it on the same terms set out in our contract. The time lost in trying to get the survey made is as much as ninety days, which is the extension of time I ask, in justice to me, of our contract*668 as to the land. I could not sell until this survey was made, and every possible effort has been made to get the surveying done, and you were to have it done—not myself. Still, I tried hard to-the job done in time, but failed. I have stated this matter fairly, and will be glad to have a prompt acquiescence in the form of a letter, to my proposition, so that I may go ahead with what I have undertaken for you. Yours truly, C. T. Smith.”
“ Lovingston, Va., October 4, 1882.
“ Thos. G. Tate, Esq., Long Hollow, Smyth county, Virginia:
“Dear Sir,—If you have not answered my letter definitely at Saltville, please do so to me at Marion, as I will be there next week, and wish to know if you will grant what I think I am entitled to. Very truly, O. T. Smith.”
“At Capt. Brown’s, Nov. 12, 1882.
“Thos. G. Tate, Esq.,
“Dear Sir,—Where can I see you to-morrow? I would like to see you and Capt. Shannon together, and if you are going there to-night, I will come there to-morrow or the next day as may best suit your convenience.. I read your letter declining to extend my authority to sell your land, and did not answer it because I preferred to see you and him together in regard to it, especially as I know it is to your interest that we shall have a conference. Yours truly, C. T. Smiíh.
“ P. S.—Let no one see this or know of it except Capt. Shannon. C. T. S.”
And here the defendant rested. Such being all the evidence, that is, on behalf of the plaintiff, the contract of April 26, 1882, set out in the plaintiff’s bill of exceptions No. 1. and the letter of the defendant of October 11, 1882, set out in plain
In strictness, this instruction should have been refused, as there was not a particle of evidence tending to prove the case supposed in the instruction. However, the jury found for the defendant, and thereupon the plaintiff moved the court to set aside the verdict and grant him a new trial, on the grounds that the verdict was contrary to the law and the evidence, and because of the erroneous rulings of the court in excluding testimony offered by the plaintiff. But the court overruled the motion, and the plaintiff again excepted; and this is the plaintiff’s bill of exceptions, No. 7, in which all the evidence given at the -trial, and also that offered by the plaintiff and rejected by the court, as set forth in the previous bills of exception, is set forth or referred to.
The evidence has already been stated in full, and there can be no use in repeating it here. It is perfectly clear that the court below did not err in refusing to set aside the verdict and grant a new trial. The only question involved was as to the liability of the defendant by reason of the alleged breach by him of the covenant in the agreement between the parties of April 26, 1882, in respect to the sale of the defendant’s land by the plaintiff. The agreement expired on the 1st day of September, 1882. Just before its expiration the plaintiff, in his letter written at Saltville and dated 23d of August, 1882, says: “ Owing to the failure on your part, aided by my persistent efforts to get your land surveyed, I have been unable to sell it;
On receiving this letter from the plaintiff the defendant went to Saltville to see him, but he was gone. Then, on the 4th of October, 1882, the plaintiff wrote from Lovingston, Va., to the defendant in Smyth county, saying: “ If you have not answered my letter definitely at Saltville, please do so to me 'at Marion, as I will be there next week, and write to know if you will grant what I think I am entitled to.”
The plaintiff’s authority to sell the defendant's land had then expired by over one month, and in a few days the defendant answered (see his letter of 11th October), declining the plaintiff’s proposition for an extension of time as to the land, but saying nothing as to the minerals, which was a distinct matter. These facts show that the agency was up and done with, and that the land had not been sold during the-continuance of the agency, and the plaintiff’s admission that neither he nor the defendant was to blame for the failure. Yet in the face of these unbending facts and admissions, the plaintiff brings this suit and avers in his declaration, first, that he well and truly
Judgment aeeirmed.