Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1894-03-09
THE SUPREME COURT.
THE PROCESS or RECORDING DEEDS
AND CONTRACTS IDENTICAL


important case 10 the public was that OF
Callahan against Young, clerk, from the
Corporation Court of Norfolk. the opinion
In which was prepared by Judge LEWIS
The principal question determined In this
suit is that In order for contracts 10 oe
recorded they must be acknowledged Ut
proved In this case Callahan soid 10 one
Thompson a cash-register. upon contract
made in writing. The application OF ,he
defendant to docket a memorandum OF '"e
contract was refused on the grouhu 'ha'
Il had not been ACKNOWLEDGED or proved
IA required by section $500 OF the Code.
II was upon the same ground that the
Court refused TO award mandamus COM
polling the clerk to docket the memorah-
dun.
TREATISE OF THE OPINION.
Judge Lewis quotes from several sec
tions applicable 10 the case and holds that
the contract was not acknowledged by
either OF the parties, nor proved by wit
nesses. Section 1862. recites the opinion
recurring the contract IN such case to be
ia writing and TO be executed by both ven
dor and vendee. and provides that 1t Is
void, &c. until and except from the time
that memorandum Of said writing setting
forth the date thereof, the amount due
therein. and brief description OF said
goods and chattels BE- docketed" In the
clerks office.
The Court holds that there is technical
distinction between recording a wr1tins
and docketing a memorandum, and that
the question for decision was what was
the intention Of the Legislature In enact
ing the law?" 1t was in the opinion OF
the Court not the intention Of that body
to require the clerk to docket the memo
randum as to both parties upon the YER
bal request OF either without other ev-
dence of the authority of the contract.
The true Interpretation OF the technicality,
in the abs nee of clear Legislative intent
to the contrary. says Judge Lewis, would
Seem ~ be that the contract. when pro-
duced for that purpose. must be authcnu-
Gated in the same manner as when pro-
duced for recordation.
Norfolk and Western Case.
The case of Mills and Fairfax against
the Norfolk and Western Railroad Com.
pany. from the Circuit Court Of Roanoke,
embraces some interesting points. The
FaLntlcroy. leafs lengthly with the con-
troversy. and sends IL back to the lower
tribunal 10 be- heard on its merits. The
case is an appeal from a decision sus-
tanning demuTrCrs made in the Circuit
Court OF Roanoke in an action of cove
mart against the railroad company. The
suit grew out Of contract between
Messrs. George r. Mills ana Henry Fair
fax. railroad contractors. 10 build a Ger
tain rtr+in1 If no l'tLbpru IlY,pgh Of
the Norfolk and Western railroad. in
Guiding Il tunnel through Flat-ToJ Noun
tain. on the No 8 coal-bei The Court
says that the whole controversy depends
upon the price 10 be paid for the cXca-
walton OF certain sections Of the tunnel.
according to the Specifications in the con-
tract especially relative thereto the plain
tffs maintaining that they were entitled
by the express terms and intendment Of
the contract to $50 per cubic yard. in
stead OF $l1j. the amount allowed trcm.
Tn. suit was to recover the difference be-
tween these prices, amounting TO about
$2to5O The work was admittedly wei
done.
COAL VEIN DISAPPEARED.
The declaration alleges that the No. 5
coai-bci Tot only became Of less thick
ness than mentioned in the contract -four
focu, bat that ii entirely disappeared
from the tunnel for the distance Of 100
feet This fact was admitted by the de-
murrer. The plaintiffs dill hot Claim the
price OF $3.50 pr yard where the vein
OF coal became Of less thickness than
four .,et, but only Where g entirely dis
Appeared from the tunnel. IN. reason Of
IT,. company's refusal 10 pay for the work
in accordance with the price charged by
Mills and Fairfax and the terms of the
contact was because it's own engineer GER
uheI that the plaintiffs Were oliy en-
tit,-t e. yl1j per cubic yard.
The opinion discusses clabOrateiy the
terms % the coatract ana ,he applica-
tn ~ the law. and adiudges that the
Citcuit Court Of Roanoke erred In sus-
tanning the demurrer and GcEying the
plaintiffs the opportunity to make good
thar allegations by proof.
Against the Land Company.
Ia the case of the Virginia Land Com
Iguy against Haupt. the Court ailirms
the action of the Circuit COur, of the
city OF Roanoke in which verdict was
rendered in favor of IIaupt The con-
trOlyrsy is a simple one, but the action
OF tAe Supreme Court settles conclusively
a very important point of law in the State
OF Virginia.
Ia this case the defendant subscribed
TO certain stock in the company at the
instance OF one O'Lcary, real estate
agoHt, in Roanoke and one OF the pro-
motors. OLeary, when he solicited the
defendant to subscribe, informed him In
answer 10 a specific inquiry that the land
proposed to be purchased belonged tC
Gates, Norman Norman.
\ man named Christian. another sub
scrlbcr to the stock and promoter and
OLcary then, 1t is claimed. held options
on the land, which fact was not men.
toned to Haupt, who was urged to sub
scribe to the stOc., as a desirable invest
ment Upon this advice Haupt agreed &c
take 100 shares. Tire company was then
formed. and the land transferred to it
and. 1t is alleged. O'Leary and Christian
realized very large profit. Meetings OF
the company were held and assessment:
levied, which the defendant declined tC
pay, preferrng TO forfeit his stock.
THE INSTRUCTIONS PROPER. =.
The Court holds that If Leary induced
the defendant 10 subscribe ignorant o
the fact above referred to. relying or
his tO'Leary's) supposed disinterested anC
superior judgment. into making a con
tract that he otherwise would not have
made. the subscription was voidable at hi
Haupt0 option. Such instruction wa!
given TO the jury of the lower tribunal
and the Supreme Court states clearly thai
this instruction propounds the law cor
rectly. Numerous authorities arc referred
TO touching this point. Therefore, th'
judgment OF the lower court is affirmed.
Other Cases.
Magarity against Succop's administra
tor. From Circuit Court of Fairfax coun
~. Affirmed. Judge Lacy delivering
opinion.
Ginter against Beeden. From the Cir
cult Court of Rockingham county. Re
versed. Judge Fauntleroy rendering
opinion.
Tyler, receiver against Sites admins
traitor From Circuit Court OF Rocking
ham county. Reversed, Judge Levi.
delivering opinion.
Strade against Clement. From Circuit
Court of Amherst county. Reversed
Judge Lewis delivering opinion.
Forbes against Commonwealth. From
County Court OF Appomattox county
Affirmed. Judge Lewis delivering
opinion
Whalen against Commonwealth. From
Hastings Court of city of Staunton. AZ
firmed. Judge Lewis delivering opin
ION
Virginia Fire and Marine Insuranc,
Company against Thomass survivor ant