Mundy's Executors v. Garland , 112 Va. 743 ( 1911 )

Buchanan, J.,

(after making the foregoing statement,) delivered the opinion of the court.

The question involved in this case is whether or not a motion under section 3211 can be maintained upon the contract upon which it is based. That section provides, that “any person entitled to recover money by action on any contract may, on motion before any court which would have jurisdiction in an action otherwise than under section 3215 of the Code, obtain judgment for such money ...”

As was said by Judge Riely in delivering the opinion of the court in Long v. Pence., 93 Va. 584, 586-7, 25 S. E. 593, 594, “The statute thus authorizes the proceeding by motion whenever a person is entitled to recover money in an action on ‘any contract.’ The only restriction imposed by the statute as to the nature of the contract upon which the recovery may be by motion is the right to recover money upon it by action. If the contract is such that the person making the motion is entitled to recover money upon it by action, he is entitled to proceed to do so by motion, whether it is based upon an express or an implied contract. The remedy extends to all cases in which a person is entitled to recover money by action on contract.”

The agreement upon which this motion is based is clearly a contract upon which the plaintiffs could maintain an action to recover, money. It authorizes the plaintiffs to resell the land which the defendants had theretofore agreed to purchase at the price of $9,500, and binds the defendants, if upon such resale it should bring less than $9,500, to make up the difference between the price obtained at such resale and the agreed price of $9,500, together with six per cent, interest thereon from April 2, 1910, and all costs and expenses' incurred by the plaintiffs in making such resale. It was a contract by which, upon the happening of certain things, the defendants bound themselves to pay money, the amount of which after the happening of the contingencies provided for was a mere matter of calculation.

The notice avers the happening of the contingencies upon which the defendants agreed to pay and the amount of money due under the contract. Whether those averments are true or not is a question of proof. But clearly, as it seems to us, the contract upon which this motion is based is one upon which the plaintiffs had the right to proceed under section 3211 of the Code as construed in Long v. Pence, supra; Morotock Ins. Co. v. Pankey, 91 Va. 259, 266, 21 S. E. 487; Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 26 S. E. 421, 64 Am. St. Rep. 715, 36 L. R. A. 271; Grubb v. Nat. Life, &c. Co., 94 Va. 589, 27 S. E. 464; Wilson v. Dawson, 96 Va. 687, 32 S. E. 461.

The judgment complained of must be reversed and the cause remanded to be further proceeded with in accordance with the views expressed in this opinion.,-,

Reversed.