Wallinger v. Kelly , 136 Va. 547 ( 1923 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The questions presented by the motion to dismiss and by the petition for the writ of error will be disposed of in their order as stated below.

1. Does the petition for the writ of error sufficiently “assign errors” so as to satisfy the requirement of the statute on the subject (section 6346 of the Code)?

The question must be answered in the affirmative.

It is true, as urged in behalf of the plaintiff on the question under consideration, that it is well settled that a petition for a writ of error is in the nature of a pleading and that it should state clearly and distinctly all errors relied on for reversal, and errors not so assigned will not, as a rule, be considered—the party complaining “must lay his finger on the error.” Burks Pl. & Pr. (2d ed.), pp. 770-1; Puckett’s Case, 134 Va. 574, 113 S. E. 853, and authorities there cited. But, as held in New York Life Ins. Co. v. Franklin, 118 Va. 418, 87 S. E. 584, the discussion in the petition may be treated as a substantial compliance with the statute, when the notice to dismiss for failure to comply with the statute is not made until after the right of appeal is barred by limitation; and such is the case before us. The motion to dismiss first appears in the brief for the plaintiff, which was filed November 14, 1922, which was after the right of appeal was barred by the statute on the subject, and the motion was not called to our attention until some time thereafter, upon the oral argument of the case. And while we must say of the motion to dismiss in the instant case, as was said of such motion in the case just cited, namely: “The motion is not without merit, for the petition does not in any concise or satisfactory. manner point out the precise grounds upon which it seeks a reversal of the judgment”—for the reason just stated, the motion to dismiss will be denied.

2. Did the court err in setting aside the verdict upon the second trial as contrary to the law and the evidence, or because the court allowed the defendant to introduce, under the special plea of set-off filed in the case, the evidence objected to by the plaintiff, of damages sustained by the defendant by reason of the breach on the part of the original payee of the note sued on, of its counter-promise, the performance of which was, according to the uncontroverted evidence, the main or chief consideration for which the note sued on was given and which induced the defendant to give the note?

The question must be answered in the affirmative.

It is true that, as it turned out on the trial, upon the development of the facts in evidence, no issue as to the damages sustained by the defendant need have been tried. For, aside from the question of whether the defense of failure of consideration could be made as against the plaintiff assignee (which, in view of the admissions stated preceding this opinion, is no longer a question in the case), in view of the uneontroverted evidence to the effect that it was a ease of mutual dependent promises (the promise of the defendant to pay the note which he did pay and also the note sued on, and—as the main or chief consideration for the payment of said notes—the promise of the plaintiff’s assignor to give the defendant the position, stipulated for when he gave the notes), the ground of defense, that the consideration promised the defendant for the note sued on, and which induced him to execute it, ■failed, presented the only issue which, according to the weight of authority, need have been submitted to the jury in order for them to have properly decided the ease on the merits. Upon that issue the law and the evidence was, as was developed on the trial, ample to support the verdict in favor of the defendant.

The evidence, without conflict, was to the effect that the aforesaid promises were not independent, but mutually and dependent promises. That the note sued on was given by the defendant and delivered upon the •expressly stipulated condition (which was the chief consideration moving the defendant to give that note and also the other note which he gave), that the original payee of the note sued on would give the defendant the position mentioned in his application therefor, and referred to in the letter of December 31, 1917, in evidence; and it was also stipulated by the defendant at the same time, as appears from such letters, that he •should be given thirty days’ notice of the time when the position would be given him. By the acceptance of the defendant’s proposition and the notes given by him, as shown in evidence, the said payee promised to give the defendant the position within a reasonable time, and to subsequently give him thirty days’ notice before that time arrived. In his testimony before the jury the defendant stated that when he took up the first note which fell due (on March 15, 1918), he asked the ■president of the said payee when he was “to begin work;” that the president said: “You can begin to get .ready now;” that he asked the president just what he .meant by that, and the president said: “About a week, and that I (the defendant) could make my (his) arrangements accordingly.” This, in the light of the accepted stipulations aforesaid, fixed definitely the time at which the said payee promised to give the defendant the position, namely, within thirty days from March 15, 1918. It is true that, as shown by the evidence, by his acquiescence thereafter in the default of the said payee in the completion of the contract in such particular, the defendant assented to the postponement of the time for such completion of the contract for a reasonable time after the last named date; but the evidence was ample to support the jury in finding that reasonable time expired prior to October 28, 1918, and that the defendant had the right, as of such date, to treat the contract aforesaid as broken by the failure of the said payee to furnish the consideration aforesaid as promised; and the defendant accordingly elected to treat the contract as so broken, as evidenced by his letter of that date so notifying the said payee. And, as above indicated, it is manifest that the jury were warranted in finding from the evidence that the promise of the payee of the note sued on to furnish the position aforesaid, was the main and moving consideration which induced the defendant to give the note sued on and the note which he paid, and that the part performance of the contract on the part of the payee, consisting of the delivery of the stock, was of minor importance; and that payment by the defendant to said payee of the note for $500.00 first falling due more than covered the value to the defendant of the stock received by him from such payee.

Such being the facts, as the evidence warranted the jury in finding them, the law is well settled that, the payee of the note sued on having failed to furnish the . aforesaid promised main or chief consideration therefor, even if such failure was due to the impossibility for any reason of the furnishing of the consideration, the defendant payor was excused from paying the note sued on. 2. Williston on Contracts, sections 814, 824, 840, 885, 841 and 842.

In section 814 of the valuable work just cited this is said: “* * Failure of consideration * * will exist wherever one, who has either given or promised to give some performance, fails without his fault to receive the agreed exchange for that performance. Thus one who had paid $500.00 in return for an agreement to transfer a horse to him, fails to receive the consideration or exchange for his $500.00 if the horse is not transferred. * * * The reason why the horse is not transferred may be due to excusable Impossibility (as if the horse should die before the title was transferred), or it may be due to a breach of duty on the part of the seller. In either case the buyer may recover his payment. * * * If the buyer has not yet paid the price for the horse at the time of his death, the consideration or exchange for the payment has failed, and, similarly, if the seller wrongfully breaks his promise to transfer, the buyer is not getting the exchange or consideration for the payment which he had agreed to make. And as the buyer might reclaim the price if it had already been paid, a fortiori, he is excused from keeping his promise to pay it, if not yet paid.”

Of the holding of the American authorities on the subject in section 840, sufra, of the same work last quoted, this is said: “* * Though the contract contained in a promissory note and that contained in the counter promise of the payee are separate contracts, the performances are, nevertheless, intended as equivalent exchanges for one another, and a failure to perform on one side will excuse performance on the other.”'

In section 885, supra, of the same work, this is said: “It may seem that where performance on one side of a contract is precedent to that on the other, and the time for the prior performance has arrived and, no defense then existing, a right of action has arisen, this right of action cannot afterwards be destroyed * *. Such, however, is not the case. Circumstances may subsequently arise which would justify the recovery back of the prior performance, if it had been given, and therefore, if it had not been given, but a cause of action for it arisen, to avoid circuity of action the court will deny recovery.”

And in sections 841 and 842, of the same work, on the subject of the right of the parties where the breach of contract consists of the failure to furnish, not the whole, but only a part of the consideration for a promise of the injured party, this is said:

“Section 841. Part performance on one side.-—-Lord Mansfield decided, soon after his recognition of the dependency of promises in bilateral contracts, that where there had been part performance by the plaintiff and a breach of promise by him went only to part of the consideration, and could be compensated in damages, the plaintiff might recover in spite of such breach.” (Citing Boone v. Eyre, 1 H. Bl. 273, N.) “The principle thus established has been uniformly followed.

“It has been said, however, that ‘There is a great difference in the authorities in the application of the doctrine of implied conditions precedent in a contract, * *’ where there has been part performance. This difference appears particularly upon the question as to-the measure of performance by one party which is to be regarded as such substantial performance as will protect him from having his defaults considered as breaches of such a condition, and also upon the corresponding question as to the kind of default which so far goes to' the essence of the consideration as to justify the other party in refusing to go on with the contract.

“In the nature of the case precise boundaries are impossible. The question which must be decided is. whether on the whole it is fairer to allow the plaintiff to recover, requiring the defendant to bring his cross-action or counter-claim for such breach of contract as-the plaintiff may have committed, or whether it is-fairer to deny the plaintiff a right of recovery on account-of his breach, even at the expense of compelling him to forfeit any compensation for such part performance as-he has rendered. The decision of this question must-vary with the special circumstances of each case. Nevertheless some principles may be laid down. Where-several promises are made by one party, a breach of one of them necessarily goes only to part of the consideration, but it may be a large part, or it may be a small part. A breach of a separate collateral promise of minor importance will not justify refusal by the other party to perform, if the main promise to him has been, or is being substantially performed. On the other hand, even though the breach occurs after part performance, if it is of such a material or essential character as to go to the root of the contract, further performance by the injured party is excused.

“Section 842. Substantial performance.—The principle of part performance in dependent promises may be expressed, either by saying that a breach which is material, or which goes to the root of the matter, or essence of the contract, is fatal to the plaintiff’s case, in spite of his part performance; or it may be expressed by saying that a plaintiff, who has substantially performed, is entitled to recover, although he has failed in some particular to comply with his agreement.”

But, in view of the state of the law, indicated by the quotations above from section 841 of Williston on Contracts, it may be readily understood why counsel for the defendant preferred not to rest his case wholly upon the ground of defense of failure of consideration, and sought by the special plea and evidence of damages introduced to assert the right of the defendant, under the aforesaid doctrine of Boone v. Eyre, mentioned by Williston, to be compensated in damages for the breach •of the contract on the part of the said payee of the note ■sued on, to the extent of the amount sued for by the plaintiff, and to set up such damages in the cross-action instituted by the special plea, by way of recoupment .and as a set-off against the plaintiff’s demand in the ■case in judgment; rather than waive such claim in such • case and set it up by an independent action for such • damages, in the event that the defendant failed to sustain by his proof the issue tendered by the ground of •defense, aforesaid, of failure of consideration. And we are of opinion that the defendant had the right to do this under the express provision of the statute of re•coupment (section 6145 of the Code).

The objection urged in the brief and argument for the plaintiff, that the special plea was not tendered in time, is without merit as the determination of that question rested in the sound discretion of the trial court, and we think there was no abuse of that discretion in the instant case, as the plea was filed nearly two months before the second trial, giving the opposite party ample time within which to prepare for trial upon the issue tendered by the plea.

We are of opinion that the objection also urged, that the plea does not set out the things alleged in the plea, as matters entitling the defendant to the damages therein asserted, with sufficient precision and certainty to apprise the plaintiff of the nature of the defense intended to be made, is likewise without merit. It is true that there should be such precision and certainty in the allegations of such a plea. Burtners v. Keran, 24 Gratt. (65 Va.) 42. But, while the plea alleges both fraud and failure of consideration as matters entitling the defendant to the damages claimed as is expressly allowed to be done by the statute (section 6145), when it is remembered that the plea was not filed until after the first trial had been had, in which the defendant fully developed in evidence all the details of the matters alleged in the plea, it is plain that the allegations of the plea were sufficiently precise and definite to apprise the plaintiff of the nature of the defense thereby intended.

It is also urged in objection to said plea, and to the proving by the plaintiff of damages thereunder, that, as appears from the defendant’s testimony on the second -trial, he had then pending, in the same court in which the instant case was being tried, an action against the Normon Motor Truck Corporation, the payee aforesaid, for damages claimed to have been occasioned the defendant by the breach by that party of the same contract as is involved in the instant case. But we find no merit in such objection. The mere pendency of one action against a defendant cannot be pleaded in bar of recovery in another action in the same court by the same plaintiff even where it is against the same defendant. The well settled rule is that there cannot be a double recovery; that actual recovery in the one action will pro tanto bar recovery in the other; but, prior to any recovery, the remedy of the defendant, to avoid being vexed with and put to the expense of preparing for trial in two proceedings, in the same court, is to move the court to require the plaintiff to elect which action he will prosecute. And, if the objection to the plea and to the introduction of evidence thereunder aforesaid could be considered as, in substance, such a motion on the part of the plaintiff, the action of the defendant in the premises evidenced his election to prosecute his cross-action, instituted by the special plea, for the recovery of the damages thereby claimed. Indeed, even where there are several actions, strictly in personam, in which nothing more than a personal judgment is sought, pending at the same time in different State courts, or in State and Federal courts, the mere pendency of the one cannot'be pleaded in bar of the other. Kline v. Burke Construction Co., 43 Sup. Ct. 79, 67 L. Ed.-.

With respect to the evidence of the damages in question objected to by the plaintiff on the second trial, this perhaps should be also said: While not so specific as to the precise amount of such damages, there was ample evidence furnished by the testimony of the defendant on the subject, which was not objected to, to support the verdict of the jury in the particular of the amount of the damages. Further: Such evidence, which was objected to, was, as follows from the views we have expressed above, properly admitted under the special plea.

We are, therefore, of opinion that the first views of the learned trial judge on the subject under consideration were correct, and that the trial court committed no error in allowing the special plea to be filed and in permitting the evidence touching the damages therein claimed to go to the jury; that the verdict on the second trial, as explained by the colloquy between the trial judge and the jury, appearing in the record and set out in the statement preceding this opinion, was, in substance, correctly responsive both to the issue tendered by the aforesaid ground of defense of failure of consideration and to the issue tendered by the special plea • of set-off; that such verdict, both as it was in substance ■ and as it stood in its final form, as written by the judge, was amply supported by the evidence and sustained by the law; and that the trial court was in error in setting • such verdict aside and in entering judgment for the plaintiff. The judgment under review will, therefore,., be set aside and annulled, and this court will enter final. judgment for the defendant, in accordance with the = form of said verdict, viz,, to the effect that the set-off' in damages claimed by the defendant, equal in amount • to the sum of $559.38 with interest thereon from December 16, 1918, sued for by the plaintiff, is allowed in satisfaction of the plaintiff’s demand, and that the-action of the plaintiff be dismissed, with costs to the-defendant.

Reversed and final judgment entered.