Sitlington v. Kinney's Adm'r , 29 Va. 91 ( 1877 )

This day came again the parties by their counsel, and the court having maturely considered the transcript‘of the record of the decree aforesaid and the arguments of counsel, is of opinion that the circuit court of Highland county erred in sustaining the demurrer to the appellant’s original and amended bill.

Whether the agreement set out in the original bill between the appellant and the appellee’s intestate (N. C. Kinney) be regarded as an executed contract or one that was executory only, it is plain that the allegations of the original and amended hills taken together, contain such averments of facts as, -if true (and upon demurrer they must be taken as true) constitute sufficient ground of relief in a court of equity, and which could not be set up by plea in an action at law, so as to afford to the appellant a complete and adequate remedy.

The court is therefore of opinion, and it is decreed and ordered that the said decree of said circuit court be reversed and annulled, and that the appellant recover against the appellee his costs by him expended in the prosecution of his appeal here; and the cause is remanded to said circuit court to be determined and decided upon the bill and answers, and depositions now in the cause, or other evidence which may be hereafter taken by either *party upon the issues made by such bill and answers. All of which is ordered to be certified to said circuit court for further proceeding to be had therein in conformity with the opinion of this court herein declared.

Decree reversed.