The times. [volume] (Richmond, Va.) 1890-1903, 1896-07-10
srrRAMn CoURr or APPEALs.
Opinions Handed Down During the DaS
at Mytheville Thurs'lny.

Op1ntOus HANDED Down b"''"b '"N ''
at Wythcville Thursdny.
WYTHEVILLE. VA, July Especial
The following opinions were rendered yes
tcrday by the Court in session al Wythe-
Vile:
Nickcls ct ais VS. Peoples b. l.. and
$. Association. from the Circuit Cogrt
Of Wise county. Amrmtl. opinion by
Keith. president
The Peoples T.. l.. and S. Association
is a New York corporation. dOing busl-
ness in Virginia. Nickels subscribed 20
thirty shares of IT'S stock and received
500. lie executed his bond. secured Dog
decd of trust. for $1,000 thus paying
bonus of $500. lie contracted in ad iifion
10 pay dues. fines. premiums and interest
monthly Upon default for three months
ina these payments the whole debt, prn-
cipal and interest. became due. Default
being made the trustee refused 10 execute
the trust. thcreupon the corporation filed
it's bin. Defendant dcmurrel. FIRST upon
the ground that llainum had not averred
compliance with the conditions imposed
10y statute upon foreign corporations do
ing business in this State. secondly. that
the provision ga the bond and deed making
the whole debt due upon failure 10 ply
iustallments Of premiums and interest
was forfeiture against which equity
would relieve thirdly. that the suit was
prematurcly brought. the default not
having continued for three months next
preceding its institution. fourihiy. that
upon the merits it appears that 30 w
a Nrgnian contract and usuriOus accord
ing To- the laws of This STATE.
He'd: First The demurrer was not well
taken. II is unnecessary 90 aver in the
bill compliance with tho statutes prescrih-
ing the conditions upon which corporations
may do business IN the state 10 SIS
matter Of defence. and must Doe averred
and pleaded by the defendant no such
issue being raised IN the plcadings in this
case the question cannot Doe considered.
Second The provision In the bond by
which the whole principal became due is
not a forfeiture according 10 the modern
doctrine Of "a court Of equity il Is settled
by overwhelming weight of authority that
II a certain sum is due and secured hy
bond aud mortgage. made payable az some
future day specified. with interest there
on. payable at fixed times and "a further
stipulation provides that. in case OF de-
fault Of prompt payments Of instalments
Of interest. the entire principal VIII at
once become payable. that such "a stipu-
lation is not I'm the nature ~ q penalty,
but will be sustained in equity as well
as at law.
Third. The motion 10 dismiss as being
prcmaturely brought was properly over
ruled. it appearing that default had con
:inued for more than three months.
Fourth Upon the merits II IS held that
the transaction grew ont OF contract
made I'm Virginia. but 20 Doe performed in
New York. and therefore governed 10y the
laws OF the latter state. Where q conraSt
is made or entered into IN one state 20
De performed ia another. II Is. 9s genera
rule. governed by the laws Of the place
Of performance without regard % the
place al which il was written. signed. or
dated I'm respect 20 rs nature interprcta-
ton. validity. and effect by ;he laws OF
theStato Of New York the contract I'm
question though IL authorizes the assoc
citation TO receive premiums. dues ana
fines in excess Of the lawful rate of in
terosf is not usurious while. therefore,
the Court is Of opinion that such con-
tracts are unwisc and improvident. Yet
so long as foreign corporations are au-
thorized 10y the States which create them
20 make such contracts and are permitted
by this state 10 do business within It's
borders. the courts have no choice but TO
enforce them.
Company From the Circuit Court Of
Roanoke county Affirmed. Opinion by
Keith. president.
The Salem Improvement Company con-
tracted with Bethel * Co. that the lat
ter should manufacture 10000 bricks for
which the former were 20 pay $3.50 per
thousand When about $4,000 hai been
made the Salem Improvement Company
found themselves indebted 20 Bethel a
co. and unable 10 pay for all the bricks
that had been manufactured. and so not-
fed them. thereupon Bethel & Co stop
ped making the bricks and brought suit
against the Improvement Company. al
legng that they had broken their con-
tract anil that plaintiffs were entitled 90
recover not only the money due upon the
brick manufactured and delivered. but
the profits upon the residue OF the LOO
OU brick not manufactured. There was
a. iudlnnent for the defendants. and tho
case was brought 70 this court upon
a writ OF error
Held: That while there may De re-
cov-rv pr prospective profits when plain
tits are prevented from going on lv lee
ing ordered 10 dcsist by the defendants.
or by failure OF the defendant 10 per-
form some condition precedent 20 ite
further prosecution. the measure Of dam
ages FOR the mere failure 10 paw money
az a stipulated time Is the principal sum
due and legal interest thereon. and 10
make defendant responsible for the
profits which might have accrued TO the
plaintiffs hv the use ~ tho money would
be harsh and oppressive. There are well
recognized executions 20 Oh general fiie.
but the p'alntiff in This case has fa-ied
10 bring himself within the influence "a
such exceptions.
Simmons va Palmer. From the Circuit