Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-01-08
JUDGMENT OF LOWER COURT Az
rIRmEn IN CnILDREss CASE.
MANY OTHER DSClS. OsS YESTERDAY.
one Deals with the Question of How
Payment of Costs Affects setuns
A.sas .,ncaIs. and Another Re-
Intcs 10 Breach of Contract.

tratrix against the ChcSapta~e AZ" D
Railway Company. in which the judgment
of the Henrico Circuit Court is aihfln'''
This action was brought by MIS-
ch,dress TO recover damages Tor the
6ca,h of her intestate, which, she aieseu'
xxas caused by the negligence OF the ue-
<.,ao,, comnanv. In the lower court
tho ,,ry returned a verdict for the PLAIN
tifr for 5000. subject 10 the OPINION %
the Court upon the defendants demurrer
70 the evidence. The Judge sustained
the demurrer. and entered judgment ior
the defendant ..c
WHAT A DEMURRER MEANS
Juage Keith's opinion deals exhaustive
10 with the bill OF exceptions, ana the
law of evidence, 50 far az II bears upon
,he testimony adduced in the case. Inc
r,tncinles governing the court In passing
won demurrers to evidence are S'uteu
os fellows: "By the demurrer 10 the
evidence. the party demurrins Is con
s,dered as admitting the truth OF ms au-
versary's evidence, and all Just h''oi
onoes which can be properly urd"n
tberefrom, by n jury. ana as WalN'hs az
20, - o,vr evidence which conflicts with
90 .'S >, his adversary. AID all differences
Sron, his own evidence although not ID
conaict with his adversarys) when 40
not necessarily result therefrom'
HOW HE WAS KILLED.
x,r chndress was killed at the Chesa-
xa,ke and Ohio crossing on the Darby
town road Just below Rchmouo. ne
railroad energies from cut al ihls poihe,
md the ernbankment obstructs the view
of approaching trains rhe ohiE uhs0,
evidence given when the case was urea
no
brakeman OF the train, who all claimed
thot the usual signals were given when
nhe train passed the "nistlhg-posi'
So,~e of the witnesses did not near the
danger signals which Immediately pre-
coded the accident, and they dinered
somewhat as 10 the order IN whlch the
stynals were gwen. The positive evil
deuce OF all who were in position 10
sneak with certainty was to the effect
that the danger-signals were given as
soon as the necessity for them appeared.
A Brench-of-Contract Case.
Judge Harrison delivered the opinion
N the case of James, &c, VS.: hlDier
Administrator and KILLERS Administra-
tor vs. James. &c, from the Corpora
zion Court of Danville. The plaintiffs
leased certain real estate TO the defend
ants intestate and others Tor speci-
ead neriod. the lessees agreeing TO pay
therefor an annual rental OF $500, paya
bic I'm monthly instruments OF $3.50 each.
The lessees not having taken possession
of the demised premises, the plaintiffs
gave them notice that the premises WeI'
ready for their use ana occupation.
This notice. being disregarded, they were
notified in writing that unless they
compiled with the terms OF the contract
Of lease on or before a certain day
named In the notice. the lease would
be put up at public auction after due
advertisement and the lessees helu
chargeable TO the plaintiffs Tor all costs
damage. and deficit, If any, between
the contract. and what could be OBJ
tanned at the sale. No attention being
maid 10 this notice the lease was duy
sold at public auction. and one of the
nlaintiffs being the highest bidder be-
came the purchaser at 81 4J0 per annuln
or 80 S3-1-3 per month, leaving deficit
of 81 $50 per annum, or SlZ5Io 20 per
month Thereupon. the plaintiffs brought
this action to recover as damages. lhe
sum that would have been due as rents
AZ the date of the auction sale, ana
the value at that date of each future
monthly deficit OF S1291G2-S and costs
and expenses OF sale as the just mea-
sure of compensation due from the
lessees for their total breach OF the
contract
There is filed with the declaration
bill of particulars showing the present
value of each monthly deficit to the end
of the lease obtained according TO well
established rules, and the other items
OF damage claimed the whole aggre9at-
inc ss. 73s. ss Ia. as of date to which the
calculation is made
THE QUESTION INVOLVED.
The question presented is whether the
plaintiffs are entitled 70 recover damages
in solido for the breach OF the contract
or whether then can only recover the
amount Of deficit due under the contract
at the date of the judgment. Inc pam
tins asked for an instruction covering the
former view. which was refused, and IN
lien thereof one was given on behalf OF
the defendant embodying the latter view.
"The court below" says the opinion,
"seems TO have regarded the plaintiffs
action as one to recover instruments Oh
rent falling due under an existing ana
continuing contract, rather than as a suit
10 recover damages for the complete
breach of the contract.
"There was an entire abandonment OF
the contract by the defendant, refusal on
his mart TO carry 1t out. he stood Dy,
after due notice in writing, ana ac-
.n,iasced in the lease contract being soid
al public auction, fully informed that
he would re held responsible for what
ever difference there might DE between
The price obtained at the auction sale
and that which he contracted to pay.
In such a case the plaintiff Is not en-
f,tled TO recover for rent OF the premises,
Int ne has compensation Tor the INJURY
anstained in consequence Of the breach
~ the contract and his measure OF dam
aye Ia the difference between that which
he was TO receive under the violated
contract. and that which he does re-
ceive from the purchaser of the lease at
either private or public sale fairy
made" -
After arguing the matter fully, the
opipion declares that the judgment OF
the lower court must be reversed. the
verdict of the jury set aside, and the
case remanded for a new trial
Costs and New Trials.
In the case of Herman Haupt VS.. c.
w Tebault, from the Corporation Court
~ the city of Norfolk. the following
opinion was handed down by Judge Buch-
anan:
"A new trial was granted n this case.
The costs were not paid at or before
the succeeding term OF the court. AT
a subsequent term, the plainfin, against
wbom the new trial had been grant
"a moved the Court 10 set aside the
order granting II, because the defendant
had not paid the costs as required by
law. Thereupon. the defendant rendered
the costs OF the former trial The Court
sustained the motion and rescnded the
order for a new trial. This action Of the
Court Is assigned as error.
..Where new trial Is gyanted for
causes ether than the misconduct of the
opposlfe party, section 3542, % the Code.
.,,nvidas that the party 10 whom the