Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1889-03-29
Mr.. SEDD0N'SSUCCESS
he GETS A NEW TRIAL IN THE RosEs-
BAUM CASE.
Opinion Of the Supreme Court Of Appeals
Pronounced Yesterday By Judge
y W. Lacy.

the supreme Court OF Appeals. was In Wash.
ingtop Yesterday. sDd Judge Lacy. the next
judge In seniority Of commission, occupied
bis char and delivered a. the trsl opinion
the decision OF the court in the case OF Sod
don against Rosenbsum, on an appeal from
the CIV Circun Court Of Richmond, where
Judge Hancock presided for Judge Well
ford.
Mr. Rosenbaum is one Of the wealthiest
merchants of this city.
Nj. seldom is a son OF the Confederate
Secretary 81 War: was formerly broker
here. snd il now a resident Of Birmingham,
and soon after ibe election OF lIstuson visit
Ell ihsi successful politician al indianapolis
Al the head Of delegation OF "protecIiVe
Democrats"
The amount claimed by Mr.. Seldom OF
Mr. Roseubaum is 100000
The city Circuit Court decided against
seldom; now The supreme Court gives Sed-
don new trial.
The opinion in Pail.
Following IS the opinion;
THIS Is writ OF error 10 Judgment OF
the Circuit Court of the city OF Richmond on
the I8th day Of July 1887.
The action wss assumpsit upon contract
hv The defendant 20 soil The plaintiff two
hundred and dfty shares Of the capits' stock
of the Richmond and Danyille Railroad
Company al The price Of S96 per share.
THs WRITING.
The contract was reduced 10 writing, but
wss not signed by the party sought 10 be
charged. and Is IS follows:
"S. NJ. Il. fhe deicndanr 10 buy 2j0 shares
ar. and u. at 80 and soil the same TO +.
''~eddon At the end ~ three years Al 9G.
''Stock NAV be called At 9G at any time be-
"iore expiration of three years"
STATUTE or FRAupS
There was demurrer by the defendant
winch was oveTrued, snd his plea setting
up the statute oi frauds rejected by The
Court. and IssDe was Joined upon the plea
Of non-as,umpsit
Upon The trial the plaintiff asked for an
instruction 90 the jury, winch the Court re-
fused. and gave Others TO which the piaintii
excepted. After hearing the evidence aud
uY,ou the instructions Of the Court the jury
rendered verdict for the defendant. which
the plaintiff moved TIE Court TO set aside Tor
reasons already assigned IN the other cXcep-
tions, which motion the Court Oyerrucd, and
the plsinth again excepted. WhcreupOn
the piainti0 applied for and obtained writ
Of error 10 ihis court
FIRST ERROR ASSIGNED.
The frat error assigned here Is as TO the
action Ol the Court in refusing 10 give 10 the
jurv the instruction asked by him, which
was ss follows:
'If tle jury believe from the evidence that on
Or about the llul Jay OF March, 'SH, The Ilaintn
and defendant entered into an agreement by
which the defendant agreed 30 buy 30 shares u
kchmond aud Danylle rail cad stock aud sell
the ssiac O. tte plaintiff al S9i per share, tho
plniuun % tage the same al the end oi three
years from TIE date Of the agreement. hut with
the right % TAKE 20 at any time pri0r 20 the ex
pirHton ~ tne three year., aud il they further
believe mat early in the mouth Of july. ls-b me
pfsiuuT or iis duly authorized agent demanded
delivery of the stock from the defendant and
teudered him pay for The same ana mat the de-
fsu1ant refused 90 deliver the said stock. then
the jury must Ind for the plaintiff an amount
e4Yai 20 ths dilorcuco between tho contract
price and the maFtet value OF The rtock al the
time of the refusal TO deliver the same
And in giving TO tho jury in lieu thereof
an instruction that the said contract WAS
void under the statute ot frauds. unless the
iury should believe from the evidence that lt
was in writing and signed by the defendant
or his duly authorized AGENT rs being OBJ
noxious 10 The seventh clause u the 2S4Oih
section Of the Virginia Code. which provides
that:
'No action sha'l Dee brought upon any agree
ruent that is uo' to he performed within year
unlr-- tue uyreerleut or some memorandum or
note thereof ue iu wiring and signed 10y tho
party o. De charged thereby OF bis agent" &c.
IuE FATHER or ENGLISH EQUITY.
Our statute Of frauds and pcriuries cor
responds 90 the English statute OF % Car,
"a g., o., which an eminent writer 0f that
realm dcsiguates a. the most important and
most beneficial piece Of Judicial legislation
~ which England can bos,t. (Lord Camp
bell. Camp. Lives Chan. on 33O.j
Lord Nottingham. WHO is STYLED "the
father Of English equity" claims to have in
f.tll fu -
f, orieins conception has long heen popu-
hrig imputed to lOra Hale snd Sir Leoline
Jenkins. ASH yS. Andy. ~wanSt. col;
Nndilm ys. Cheiwynd, ] Barrow, 4lS.)
And the proper construction Of The law has
been considered and debated in = vast num-
her % cs.ts. so ihlt, as is said by al eminent
author ~ our own times lMr. Minor, VI.
g.. I1l. to ascertain the s'gndlrStlon OF its
several claims has cost an immense sum Of
money; a subsidy II Is customary 10 say t0r
ey.rl nne. (Wain and 0is. IS. Walters, .
I1.,. 1872
Our statute Of psrol agreements corre>
spouds 10 the fourth section o. twenty
moth Car, e., 3.
Tv the seventh clause the agreement con.
tcuplatsd by the statute are such a. on their
flc have their Performance potponed be-
NouI one wear and not such as may or may
not chance to he performed within tnat PEE
uod.
EXAMPLES.
ln the case OF Peter ". Compton Is ". and
W hug'- Bench smiths Lead. cas. 3l6,
t.t question upon the trial in an action upon
tl.r ri.c. upon an agreement. in which the
l,f1d1ui promised for one guinea TO give
t.p uaIut0 so many upon the day OF his
marriage. was. IL such agreement ought 10
lr n writing. for The maTrage did moi nap
pen within wear. II was held that when
i.c agreement is TO be performed upon
,.utueent, and IL does not appear within
f.c agreement that II isio be performed after
tut wear. then 8 u0ie j. not necessary. for the
eDutingeui might happen within The year.
Dat when 10 appear. hv the Wh0le tenor OF
fac agreement that It i>to De performed after
tie wear, thru note u necessary, otherwise
not FfaEcam ". Foster, skinner, $50;
Flnfon ys. Emnlers Burr, l2Si, Bl. 333;
Wells ". Horton. 4 Bing., 40; smith ,s.
Ncalc, &. H. \. :. -.
THE CALLING or THE STOCK.
Pnt Il l. insisted In this csse by the de-
fendant In error that wbile The Daintiu could
cali the stock within the year by The terms OF
the agreement The defendant could not, aud
that upon The option Of the plaintiff the
asrtemcnt might be performed within tbe
wear, hut this the defendant could NOT do, and
that the agreement, 50 far ~ II was mutual.
Wa. beyond The year and came under the
statutt.
Tue accepted doctrine in England upon
the decided eases seems 10 be that the words
in the statute mot 10 be performed mean
moi 10 be performed "Ou either side that
- AT az agreement does not come within
thee ,stuie provided hat all that Is TO be
dom by one Of the parties IL 10 be done
wihin wear; tbal Is, thst on that SIDE the
contract - executed. ihis wss Just hinted
nj tBrsceeirdie vs.. Head, B. a Aid, 722,
and then distinctly ruied IN ponellan ".
Read @ g. a Nd. 500. Limedale ). saying as
10 the contract not beng 10 be performed