Wessel v. Bargamin , 137 Va. 701 ( 1923 )

Sims, J.,

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

The questions presented for decision by the assignments of error will be disposed of in their order as stated below.

1. Was the notice of motion (together with the account which is made a part thereof), sufficient to maintain the action? That is, did it “state a case” —i. e., a cause of action, upon which the plaintiff was entitled to recover a judgment for some amount against the defendants?

The question must be answered in the affirmative.

The decisions in this jurisdiction upon the subject of what a notice of motion must state in order to be sufficient to maintain the action are numerous. Their holding, however, without reviewing them in detail, may be summarized as follows: It is settled by such decisions that the notice must state facts which, if true, entitle the plaintiff to recover upon such facts a judgment for some amount against the defendant. But the notice need not state the facts in detail. They are matters of proof. It is sufficient if the notice is such that the defendant cannot reasonably mistake its object, i. e., the cause of action intended to be stated therein. If the defendant desires more specific information of the details of the plaintiff’s claim than is contained in such a notice, his remedy is to move the court to order the plaintiff to file a statement of the particulars of his claim. Graves v. Webb, 1 Call (5 Va.) 443; Moore v. Mauro, 4 Rand. (25 Va.) 488; Burwell v. Burgess, 32 Gratt. (73 Va.) 472; Carr v. Meade’s Ex’x, 77 Va. 142; Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 26 S. E. 421, 36 L. R. A. 271, 64 Am. St. Rep. 715; Security Co. v. Field, 110 Va. 827, 67 S. E. 342; Rinehart v. Pirkey, 126 Va. 346, 101 S. E. 353; Matthews v. LaPrade, 130 Va. 408, 107 S. E. 795; Bardach Iron & Steel Co. v. Tenenbaum, 136 Va. 163, 118 S. E. 502, to cite only such of the decisions as are cited for the plaintiffs and defendants in argument upon the question under consideration.

The notice in itself in the instant case is insufficient, but the notice makes the account a part of it, and when they are read together they notify the defendants that the cause of action alleged is the breach by the defendants of the contract, mentioned and identified by its number and date, by the failure of the defendants to accept the soda mentioned at the contract price and during the contract time for delivery mentioned, and that the damages claimed by the plaintiff for such breech of contract is the difference between the contract price, which is stated, and the market price during such time, which is also stated, which difference it is alleged amounts to $1,545.26, for which amount judgment would be asked, with interest thereon from March 31, 1921. Such, we think, is the plain meaning of the notice, when read along with the-aecount, and we do not think that the defendants could have reasonably mistaken its meaning. The notice was therefore sufficient to maintain the action.

In Mankin v. Aldridge, supra, 127 Va. 761, 105 S. E. 459, especially relied on for the defendants, the account made a part of the notice, was held sufficient to withstand a general demurrer. In 23 Cyc. 740, cited and relied on for the defendants, this is said: “Default admits only what is well pleaded; and consequently a judgment by default cannot be sustained if the plaintiffs’ * * complaint does not state a good cause of action, or lacks those averments which are necessary to show his right to recover. The test proposed by some of the decisions is, that the * * complaint must be sufficient to sustain a general demurrer.”

Of Bardach Iron & Steel Co. v. Tenenbaum, supra (136 Va. 163, 118 S. E. 502)-, also especially relied on for the defendant, it is sufficient to say that the opinion goes no farther than to say that it- is very doubtful whether the notice and the statement of damages together state a case, and that question is left unconsidered and undecided by the court as is expressly stated in the opinion.

Burwell v. Burgess, supra (32 Gratt. [73 Va.] 472), is also relied on for the defendants upon the subject in question. In that case the procedure was by declaration and there was a judgment by default for the amount of the account, with interest, as claimed by the plaintiff. The judgment was not upon a writ of inquiry, but for the amount of the account without proof, under section 44 of chapter 167 of the Code of 1873 (see. 6132 of Code of 1919), which dispensed with inquiry of damages, “provided the plaintiff shall serve the defendant, at the same time and in the same manner that the process of summons to commence the suit or action is served, with a copy (certified by the clerk of the court in which the suit or action is brought) of the account on which the suit or action is brought and the time from which he claims interest thereon, and the credits, if any, to which the defendant may be entitled thereon.” A copy of the account, certified by the clerk, was served on the defendant as required by the statute. The account contained three items like this: “1870—No. of pack’es 468 at twenty-five cents each $117.00,” and stated from what date interest was claimed on each item. The opinion discusses the question whether the statement of the several items of the plaintiff’s account were such that the defendant would understand from it what was the plaintiff’s claim “and cause of action” and whether, if so, that was “a sufficient compliance with the aforesaid statute,” but states expressly that that “need not be decided as the case turns upon other questions and no objection to the judgment on this ground was made * However, in the opinion, this is said: “It is probable that the account was stated with sufficient distinctness to be understood by the defendant, without reference to the declaration, who was a party to the transaction to which the several items of the account have reference, and, it may be presumed,- at once understood their import and was thereby apprised of the plaintiff’s cause of action.”

2. (a). Was a proceeding in the nature of the execution of a writ of inquiry of damages necessary in the instant case; and, if so, (b) was there any evidence before the court below to support the judgment in question?

The first portion of the question, (a), must be answered in the affirmative; the latter portion, (b), must be answered in the negative.

As said in Burks’ PL & Pr. (2d ed.), p. 242: “* * * a writ of enquiry of damages is, in fact, never ordered on a motion (there being no rules taken on the motion). What is done where there is no contract and the motion is on some cause of action which does not prom itself (as a note or bond would), is for the plaintiff to swear his witnesses, prove his case and take judgment. This is in the nature of an execution of a writ of inquiry, * *.” The procedure mentioned is necessary in actions by notice of motion wherever a writ of enquiry would be necessary under the established rules on the subject if the action had been by declaration instead of by notice of motion.

In Burks’ PI. & Pr. (2d ed.), pp. 254-7, this is said:

“The general rule is that a writ of enquiry is necessary in an action which sounds in damages. * *”

In 1 Barton’s Law Pr. (2d ed.), p. 564, this is said: “In other actions than those mentioned” (l. <?., where the statutes dispense with the enquiry of damages) “it is necessary to execute the enquiry of damages before any final judgment can be rendered. * * Whether the writ be executed before the court or jury, the rule is the same, that evidence must be produced to ascertain the amount of the damages * * and the plaintiff cannot recover more than he can prove.”

Hence, the decision of the question under consideration depends upon the decision of the further question: Does section 6046 of the Code, under which the action in the instant case was brought, dispense with the inquiry of damages?

As appears from that statute, as contained in the Code (being its form as in force when the proceedings were had in the court below in the instant case), it does not dispense with the inquiry of damages. There is an amendment of this statute (Acts of Assembly, 1922, pp. 763-4), which, in effect, does dispense with such inquiry if the action is of the character mentioned in the second paragraph of that statute (namely, “upon an account”), and where the plaintiff files with his notice an account such as is required, and files with such account an affidavit such as is prescribed by 6133 of the Code, and the defendant does not file such plea and counter affidavit as is also prescribed by the last mentioned section.

The statute, as amended, however, not being in force until after the proceedings in the instant ease under review were had, cannot be relied on as dispensing with the inquiry of damages, even if the instant case could be considered as an action “upon an account,” so that the second paragraph of the statute would be applicable thereto. Hence, without deciding whether the action in the instant case is “upon an account,” within the meaning of section 6046, we are of opinion that that section, as in force, when the proceedings under review in the instant ease were had, did not dispense with an inquiry of damages in such case.

Further: The contract was not filed with the notice. There was no evidence before the court below to support the judgment, unless the affidavit for the plaintiff verifying the account could be considered for that purpose. The affidavit cannot be given any more effect than the statute under which it was made gives it. And, as we have seen, the statute did not give to it the effect of dispensing with the inquiry of damages, nor, as necessarily follows, did it dispense with the production by the plaintiff of competent evidence to prove the damages. The affidavit was not such evidence. Hence, there was no evidence to support the verdict.

A number of authorities are cited and relied on for the plaintiff sustaining the well settled rule that improper evidence introduced by a party, if unobjected to by his opponent, will be considered by the appellate court as if it were proper evidence, on the ground that the opponent has waived objection to it, but this rule has no application where the judgment is by default.

The action of the court below in reversing the judgment entered in favor of the plaintiffs will be affirmed; but its action in dismissing the ease will be reversed; and the case will be remanded to the court below to be there reinstated in the same condition in which it was at the time the judgment was rendered, with leave to the defendants to file such pleas as might have been filed, and for further proceedings in all respects, as if there had been no judgment rendered.

Reversed and remanded for further proceedings.