The Daily times. [volume] (Richmond, Va.) 1886-1889, 1889-03-29
SUpREM E COURT.
JUDGE LACl's OPINION IN A Rith
M0ND CASE.
A LENG THY LI7IGA TON O|Ei
4 CONTRACT.
JUDGMENT OF THE LOWER C)UHI
OSEhRuLEp.
The Case Of scddon Against Eosenba"m
Two Hundred and rift, shares OF "ich-
mond and DnnvIlle stock ln-
voIycd History of the -uit.


In the Supreme Court yesterday Judge
Lacy delivered the opinion Of the court
in The case of Seldom as. Rosenbaum,
which went up from the Circuit Court OF
Richmond, reversing the judgment oil
the lower court and remanding the case
back for new trial. The judgment in
the Circuit Court was rendered July Is,
1887.
The action was 0ssVmDm upon a con-
tract by the defendant TO sell the plain
til two hundred and fifty shares Of the
capital ock OF the Richmond and Dan
vile Railroad Company, al the price OF
SOC per share The contract was re-
duced to writing, but was not signed by
the party sought to be charged. There
was demurrer by the defendant, which
was overrulcd, and his plea setting mp
the statute OF fraud rejected by the
Court. and issue was joined upon the
plea of noH-0SsumDu Upon the trial
the plaintiff asked for an instruction TO
the Jury, which the Court refused, and
gave others. 10 which the plaintiff eX-
cepted. After hearing the evidence and
upon the instruction of the Court, the
Jury rendered verdict for the de-
PENDANT, which the plaintiff moved the
Court TO set aside: which motion the
Court oyerruled, and the plaintiff again
excepted WheIeupOn the plaintiff APP
pea ed from and obtained a writ OF error
10 the Supreme Court.
The first error assigned was to the ac-
ton Of the Court in refusing to give to
the Jury the instruction asked by the plain
tiff.which was as follows. IF the jury be-
lieye from the evidence that on or about
the 18th day of March, 1886, the plaintiff
and defendant entered into an agree
ment by which the defendant agreed TO
buy $50 shares of Richmond and Dan
vile Railroad stock, and sell the same
to the plaintiff at 500 per share, the
plaintiff to take the same at the end'Of
three years from the date of the agree
ment, but with the right to
take it at any time prior 10 the
expiration of the three years;
and if they further believe that, early in
the month of July, 1886, the plaintiff, or
his duly authorized agent, demanded de-
livery Of the stock from the defendant,
and rendered him pay for the same, and
that the defendant refused to deliver the
said stock, then the jury must find for
the plaintiff an amount equal TO the diff
ference between the contract price and
the market value of the stock at the time
Of the refusal TO deliver the same.
And in giving 10 the jury in
lieu thereof an instruction that the
said contract was void under the statutes
OF fraud. unless the jury should believe
from the evidence that it was in writing
and signed by The defendant as his duly
authorized agent, as being obnoxious TO
the seventh clause of the 2si0th section
Of the Virginia Code, which provides
No action shall be brought upon any
agreement that is not 10 be performed
within a year. unless The agreement or
some memorandum or note thereof be in
writing and signed 10y the party to be
charged thereby or his agents, DC.
The Court through Judge Lacy. dis
cussed the statutes of frauds and per
jury. cited a number OF English and
American authorities in regard to agree
ments, and declared that "the accepted
doctrine in England upon the decided
cases seems 10 be that the words in the
statute not 10 be performed mean not
to be performed on either side, that is,
that an agreement does not come within
the statute, provided that all that is 10 be
done by one cf the payt,es, is to be done
within a year
In concluding his opinion Judge Lacy
saws
But il is further agreed that there Is
an option granted to one side which is
not granted 10 the other, and there is
want of mutually If this is so, then as
to all costs where one side grants an OPP
ton to the other, which is not unusual,
the contract il not binding. But it is
pressed further, that without the option
the contract is one TO be performed be-
yond the year Grant it, and the reply is:
/. That such is not this contract.
,. That the provision which this con-
sideraiion excludes is the provision
which renders it capable of being per-
formed within the year, and which takes
il out Of the statute; to consider the con-
tract with that excluded is not this case.
We think the Circuit Court clearly
erred in rejecting the plaintiffs instruc-
tons as asked, and the judgment will for
that cause be reversed, and the case re-
manded to the Circuit Court with direc.
tons 10 set aside the verdict and grant
new trial TO the plaintiff, at which new
trial if the evidence shall be the same
and the same instructions asked by the
plaintiff it must be given, and the in
given by the Court al the first
trial is erroneous and must not be again
given.
Judges Fauntleroy Hinton, and Rich /
ardson concurred. Judge Lewis did not
sit