Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-07-04


4 Minors Inst. s22
The instructions given by the court cor
rectly propounded the law as stated.
2. The verdict was substantially re-
| sponsive TO all the issues submitted. 1t
| was free from confusion, there was no
difficulty in entering judgment upon 1t,
and under the pleadings 1t was unoojec-
tonable. 2 Barton Pr. 6e2-'3
CUSTOM OR USAGE.
| Hansbrough, executor VS.. Neal, Feath-
erston & Co. Reversed. Opinion by
| Buchanan, J.
| Action by Neal Featherston & Co. to
recover commissions for selling land
| Verdict for plaintiff. and writ OF error.
First error assigned, permitting intro
| duction OF evidence to prove a GUS
tom or usage IN Roanoke. where the
| transaction occurred. as to rate OF COM
missions on such sales. and as TO time
such commissions became due. as an at
| tempt 10 add TO the terms OF the con-
! tract There was no written contract
| nor any express agreement as TO the
| commissions or time of payment There
| Is evidence that Gsh, the husband, had
authorized plaintiffs to make sale OF his
lani, and when they found purchasers,
that he paid an attorney to write the
agreement of sale. which was signed
| by the parties, and that Gish ana wte
| rendered a conveyance TO the purchasers
Held: l. Where there is an express
agreement. silent or ambiguous, as TO the
compensation for the work to be
done. or where there is no express
agreement at all, porol evidence is ad-
| missible TO show a certain custom or
| usage OF the business and OF the LOCALITY.
| known 10 the parties, or so genera ana
well settled as 10 raise the presumption
| that the parties dealt with a silent re-
ference to the usage and tacit under
standing that their rights and RESPONSE
bilties should be determined by II.
Richards, ETC., VS.. Hitiebeitel. ~ va,
81. and cases cited.
Such special usage or custom must be
alleged in the pleadings, otherwise evi-
dence Of the same is inadmissble Jack
sons Administrator VS.. Henderson,
Leigh (m p) 1876; Governor. &c. VS.
Withers, 5 Graft. 30 where there is
an express agreement In writing. But
where there is an implied contract only,
! and the action to recover what the ser
vices are reasonably worth. there seems
! TO be no good reason why a local usage
or custom, by which the value of the
| services are fixed, may not be set up IN
| the pleadings, since the recovery ought
| TO be what is usual and customary for
like services. whether their value be
fixed by the general law or local
usage or custom.
The evidence was properly admitted.
Whilst the rule is that the party who
| relies upon such usage must show that
IT Is established, uniform, general. and
notorious In the locality, IT is a Ques-
ton of fact for the jury, under the in
| structions of the Court, whenever there
is any evidence tending TO prove 1t, al
though the evidence be conflicting or
the witnesses differ as 10 its extent and
character
.. The first instruction for plaintiff was
erroneous. because Il directed the
fury to find for the plaintiffs and fix
their damages at per cent. on the pur-
chase price There was no evidence that
the defendants testator Gish) had be
come responsible for services rendered
in selling his wife's interest in the land.
If plaintiffs sold the land for Gish and
wife. they had the right TO compensa-
ton. but in the absence Of agreement
by husband to pay for selling his wife's
interest. he could not be held liable
therefor.
CONTRIBUTORY NEGLIGENCE.
! Ayers Administrator VS.. Norfolk and
Western Railroad Company. Affirmed.
Opinion by Buchanan, J.
There Is nothing I'm this case TO take 1t
out Of the general rule as to contribu-
tory negligence, and the judgment is
affirmed.
STATUTE OF LIMITATIONS.
Mumpower VS.. City of Bristol. Affirmed.
Opinion by Keith. Z.
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 The
waters Of the creek. which remained ope-
rative till July Is. 1898. when the Court Of
! Appeals vacated and annulled it, but its
| decree awarded him no damages. nor
made any provision for their recovery.
He brought an action in the case for DANG
ages. defendant pleaded not guilty. ond
| the Statute OF Limitations. which latter
| plea presents the sole question to be con-
sidered. Section 1927 Of the Code provides
limitation OF five years In every per-
sonal action for which no limitation Is
| otherwise prescribed. II the right of
action survive for or against the personal
representative, five years; otherwise. one
year next after the right to action ac
| crued. Mumpower contends that the
| action is of the former class, citing 81 cti0n
| 2e55-"An action of trespass. or irespass
on the case. may be maintained by per-
sonal representative for the taking or
carrying away Of any goods, or for the
waste or destruction of. or damage TO.
any estate OF or by his decedent."
Held: The wrongful act complained
of consisted in maliciously. and without
| probable cause suing out an injunction,
whereby the operation OF the mill was
suspended. II is quite obvious that tho
injunction did not operate 10 take or
carry away plaintiffs goods. nor cause
| the waste or destruction Of or infiict any
| damages upon. the estate Of the plain
tir The damage must be direct, ard
not the consequential injury or loss 10
| the estate which flows from q wrongful
act directly 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 right of action does not sur
vive and is barred by the limitation
OF one year.
|