The times. [volume] (Richmond, Va.) 1890-1903, 1894-03-09
THE COURT OF APPEALS.
Why OPINIONS HANDED DOWN AT
gHE ZRfBUNAL IES1ERDsT.
,.ars Lewis Afirnns tho Decision OF the
Norfoik Court--Ssnt Back TO the ho@-
noke Tri0unai-Tbe Other Cases.

Judge Lewis affirmed the judgment OF
che lower court 10 the case Of Callahan
.-nst YOUNG. wD.Oa was an error to
- tssement 81 the Corporation Court
Norfolk. I'm this case Robert Callihan
sid one Thompson cash register upon
certain conditions indicated by a con-
....t in writing. II is alleged that the
application TO the defendant TO docket
..narandum OF the contract was re-
...l on the ground that the contract
I'd not been Acknowledged or proved as
r...reI by section 201 on the 'ode'
.lr this ground the court refused TO
...rI "a maudamus 10 compel the clerk
..5..kst "a memorandum Of the contract.
r5rc Lewis in the opinion quotes
fr.m sections 2iS2 and 25o0 as applicable
q. tho case. and holds that IN this case
OBJ. contract was not acknowledged by
other OF the parties nor proved 10y the
witnesses. Section 2i62 rccites the opin-
f.r. recurring the contract In such
case o. bc in writing. and 90 be execute"
ly both vendor and vendec' ana pro,
,.idoe that DO is void. etc.. nnth anu
.,cepf from The time that mcnorahluIi
~ eaid writing. setting forth me d"'o
..ereof Tho amount due therein ana "
hfIof description OF said gools ahn e""'
II do. I.NfHI I'D IIlN iA'' n Fttt".t
rro Court holds that there is q teehnl-
ft..lrrflon between recording writ
and docycting a memorandum, ana
..., thr question for decision was Nv nat
no intention Of the legislature IN
....r- the law" 10 was. in the opinion
,r. Court. not the intention Of that
l.Hr to require the clerk 10 docket the
rrrrdum ar 90 both parties upon
e.. verbal request Of either without other
...rfH of ~
t..t The true interpretation or inc
..rn.-ality. in The absence OF clear
...Uve intent 90 the contrary SAYS
.. Court. would seem 10 be that the
.t-~ when produced FOR that pur-
. must boz authenticated in the same
banner as when produced for reeorda-
fon.
To stand on its inertia.
r.. case of Mills and Fairfax against
cd. Norfolk and Western Railroad Com
r from the Circuit Court OF X "a
.. embraces some unique ana lhiri-
.r. points The opinion, Whlch was
written hy Judge faunleroy' deals lens'n-
.. with Che controversy and SEND IL
s fo the lower tribunal to bo heard
IFS merits The case rs am appeal
t-r a decision sustaining demurrer
mad. n the Circuit Court Of ROANOKE
AN action Of covenant against the
abroad company. The suit grew out Of
contract between Messrs. George 4.
Stills and Henry Fairfax. railroad con-
tractors 90 build "a certain portion OF the
TRhorn branch of the Norfolk and
Western railroad including tunnel
fnrou.h Fiat Top moutain on the No.
coal bed. The court says that the
whole controversy depends upon the
price 10 Doe paid for the excavation Of
certain sections Of the tunnel, acc1i ding
90 the sue.lfcatiOns I'm the contract es-
peualiy relative thereto. the plaiutiis
maintaining that they were entitled by
tire express terms and intendment Of tn
contract 90 $3.50 per cubic yard, iastead
sU. the amount allowed them. The
suit was 10 recover the difference be-
tween these prices, amounting 10 about
So CO., Tie wo.k was admittedly well
dlue
The declaration alleges that the No.
coal bed not only became of a less
thickness than mentioned I'm the contract
forr feeu bat that 10 entirely dis ppear-
I from the tunnel for the distance Of
l-N feet The fact was admitted by thu
demurrer The plaintiffs did not claim
trf price Of $3.50 per yard where the
vein ~ coal became OF less thickness
fnan four feet but only where ~ entirely
disappeared from the tunnel. The tea-
SON OF the company's refusal TO ray Tor
tNe work in accordance with the price
charged by Mills and Fairfax and The
terms Of the contract. because IT'S own
on9ineer certified that the plaintiffs were
only entitled 20 Sl1 per cubic yard.
Ihr opinion discusses deliberately the
terms of the contract and the applica-
i'n of the law and adiudges that the
circuit Court of Roanoke erred ia sus-
't''ihE the demurrer and q nying the
f.hiihs the opportunity 10 make good
their obligations by proof
An Important l. gal Point.
inc court 20 tho case OF the Virginia
Lana company against Haupt affirms
me verdict ~ the Circuit Court Of the
'Ny ot Roanoke. The case is a very sim
i-' one bat the action OF the Supreme
'D'l settles conclusiVoiy q very imlor-
l"hl point oi law in the State of Virginia.
ln mis- case the defendant subscribed
to certain stock I'm the COMPANY at tho
instance OF one OLeary. real estate agent.
j" Roanoke. and one OF the promoters.
I'D i"tiF, when Doc solicited the defendant
To subscribe. informed him. i'm answer
10 a specific inquiry. that the land pro-
posed To be purchased belonged TO Gates
MoOfman a Norman
man named Christian, another sub
scrher 20 the stock and promoter anC
% Leary then. 10 Is claimed. held options
on the land. which fact was not men
toned 10 Haupt who was urged to sub
scribe 10 the stock as a desirable invest
ment Upon this advice Haupt agreed &c
take one hundred shares. The company
was then formed, and the land trans
ferred to it. and. IL is alleged. OLear,
and Christian realized a very large profit
Meetings Of the company were held an,
assessments levied which the defendan
declined 10 pay preferrng to forfeit hi
stock.
The court holds that II O'Leary induced
ttc defendant 10 subscribe in ignorance
NJ the facts above referred 20. relying
on hir ioLeary'sl supposed disintcrestc'
ans superior Judgment into making q
contract thar no otherwise would not hav'
made. the subscription vas voidahie a
is Orupts1 option. such instruction was
eifon to the jury OF the lower tribunal
AVID thD supreme Court states clearly ina
this Instruction propounds the law cor
feclr. Numerous authorities are referred
o. topching this point
O.her Cases
Other cases were AS follows.
hsfdniy Ns. Succ0ps, administrator.
From Circuit Court of Fairfax county.
Affirmed Judge Lacy delivered opin-
I.n
Dlrfcr ts Breeder. From Circuit Court
q. Rockingham county Reversed; Judge
lalruerOy delivered opinion.
Tyler. receiver VS. Sites. adminiatra-
tor From Circuit Court Of Rockingham
county Reversed; JUDGE Lewis ceiiv-
erlng opinion
Strobe as element From Comfy