The times. [volume] (Richmond, Va.) 1890-1903, 1897-07-04
and under the pleadings It was unobjeo-
tionable. Barton Pr. 632-3.
CUSTOM AND USAGE.

| and under the pleadings II was unobjec-
| tionable. Barton TT. osz-o.
CUSTOM AND USAGE.
Hansbrough ex'crs VS.. Neal. Feather
stone & Co. Reversed. OPP inion by Judge
Action by n. +. & Co, to recover COM
| missions. for selling land, verdict for
| plaintiff and writ OF error.
First erro resigned. permitting intro
| duction OF evidence TO prove custom
or usage in Roanoke where the transac-
ton occurred as 10 rate of commissions
on such sales. and as 10 time such COM
missions became due, as an attempt 10
add TO the terms Of the contract
There was no written contract nor any
express agreement as 10 the commissions
or time OF payment There is evidence
that Gish, the husband, had authorized
plaintiffs to make sale or MS land, and
when they found purchasers, that he paid
an attorney 10 write the agreement or
sale which was signed by the parties, and
that Gish and wife rendered conveyance
10 the purchasers.
Held /: There is no express agree
ment, silent or ambiguous as TO the COM
Densatlon for the work 10 be done, or
where there is 10 express agreement at
all paral evidence is admissible to show
a certain custom or usage or the business
and of the locality, known TO the parties
or so general and well settled as 10 raise
the presumption that the parties dealt
with silent reference TO the usage and
tacit understanding that their rights and
responsibilities should be determined by
H. Richardson etc, VS.. Hiltiebeitel, %
Va. 81 and cases cited.
Such special usage or custom must be
alleged in tho pleadings, otherwise EVIL
dence Of the same is in admissible Jack
sons admir-. VS.. Henderson, Leigh. I'm.
D. 1876. Governor &c, vs.. Withers, )
Graft. "a. where there is an express
gfTrr ,f.s.N ID. ~
Is an implied contract only. and the ac-
ton 10 recover what the services are rea-
sonably worth. there seems TO be no good
reason why a local usage or custom may
not be Set up in tho pieadings by which
the value Of the services are fixed since
the recovery ought TO be what Is usual
and customary for like services whether
tnelr value he fixed by the general law
o. local usage or custom.
The evidence was properly admitted
Whilst the rule is that the party who re-
Hes upon such usage must show that
IL is established, uniform, general and
notorious IN the locality, IL Is a question
or tact for tie jury under the instruc-
IONS OF the court whenever there is any
evidence tending 70 prove 1t, although the
evidence be conflicting or the witnesses
diner as 10 its extent and character
:. The first Instruction for plaintiff was
erroneous because It directed the jury TO
nud FOR the plaintiff and fix their damages
AT hVe per cent. on the purchase price
There was no evidence that the defend
ahts testatOr (Gish) had become respon-
sDle for services rendered in selling his
wifes interest I'm the land. II plaintiffs
sold the land for Gish and wife they
htd me right 10 compensation. but in
lhe absence OF agreement by husband to
pay Tor selling his wifes interest he
could no. be held liable therefor.
CONTRIBUTOR NEGLIGENCE.
aver Administrator vs. Norfolk and
a
Opinion by Judge Buchanan.
Ihere Is nothing in this case to take II
out of the general rule as TO contributory
negligence. and the Judgment is affirmed
STATUTE OF LIMITATIONS
Mumpower vs. City Of Bristol. Affirm
ed. Opinion by Judge Keith.
Mumpower owned a mill propelled by
the waters of a creek. In 1891 the city
OF Bristol got an injunction restraining
him from the free and rightful use of tho
waters Of the creek. which remained
operative till July 49, 1893. when the Court
OF Appeals vacated and annulled Il, but
its decree awarded him no damages nor
made any provision for their recovery.
lie brought an action I'm the case for dam
ages, defendant plead not guilty and the
statute OF limitations, which latter plea
presents the sole question 10 be consid-
cred. Section 1927 of the Code provides
limitation OF five years I'm every per-
sOnal action for which no limitation is
bAlltl WISE lItrillbfus II lllt liblll VI az
ton survive for or against the personal
representative, five years, otherwise one
year next after the right TO action ac-
crued. MumpOwer contends that the ac-
ton is OF the former class. citing section
2G5J; IAN action of trespass. or trespass
on the case. may be maintained by
personal representative for the taking or
carrying away OF any goods. or for the
waste or destruction Of. or damage 70,
any estate of or by his decedent."
Held The wrongful act complained or
consisted in maliciously and without pro-
bable cause suing out an injunction
whereby the operation OF the mill was
suspended. Il is quite obvious that the
Injunction did not operate to take or carry
away plaintiffs goods, nor cause the
waste or destruction Of, or infiict any
damage upon. the estate Of the plairtin.
The damage must be direct, and not the
consequential injury or loss TO the estate
which flows from a wrongful act, direct
" affecting the person only. No part OF
his property was taken or carried away;
the use Of the property not the property
itself, was affected by the act OF which
he complains.
such a right OF action does not survive,
and is barred by the limitation Of one
year. W. W. SILL