Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-10-07
COURT DECISIONS.
Notes Of Cases Recently Decided,
Which are of Interest to
Our People.
DIGESTED BY ". B. MARTIN.
Exclusively for virz,nian- Pllot.)
BARNES v.MoRR1soN.

Exclusively for Virzlnian- Pllot,)
BARNES vsN1oRRIsoN.
Supreme Court of Appeals of Virginia.
September IA, 1899
A CONTRACT BETWEEN PARTIES
TO BUY PROPERTY TO BE DIvID-
ED EQUALLY BETWEEN THEM
is NOT A PARTNERSHIP CON-
TRACT; EITHER CAN SUE AT
Law FOR IT'S BREACH
WHEN ONE PARTY TO A CON
TRACT ABSOLUTELY REPuD-
IATES 1T. THE OTHER PARTY IS
EXCUSED FROM MAKING a TEN
DER OF PERFORMANCE
A SECRET COMBINATION Be
TWEEN PERSONS TO REFRAIN
FROM BIDDING ON PROPERTY
AT AUCTION IN ORDER TO PRE-
VENT COMPETITION Is ILLEGAL;
BUT PERSONS MAY AGREE THAT
ONE SHALL BUY THE PROPERTY
FOR ALL.
DAMAGES ALLOWED HERE FOR
THE BREACH OF CONTRACT BY
ONE PARTY TO BUY WHISKEY
AT AUCTION FOR THE JOINT
BENEFIT OF THAT PARTY AND
ANOTHER
WHERE THERE HAVE BEEN TWO
TRIALS IN THE LOWER COURT
THE SUPREME COURT LOOKS
THE FIRST TRIAL.
This was an action brought for the
breach Of an agreement made by the
II
OF himself and the plaintiff certain
whiSkcy which was sold at auction by
AN officer II The government. The de-
PENDANT bought the whiskeY and then
refused 20 give the plaintiff any part
thereof. although he offered to pay do.
frndant half Of the purchase price
There were Two trials of the case in
the lower court. On the first trial the
Jury found fer the plaintiff, but the
court set aside the verdict. ON the
second trial there was n verdict and
Judgment for the dcfendan; and PLAN.
tiff appealed
The court says:
BY section 3iSi, OF the Code rs amend
ed. 1t is provided that where there have
been two trials in the lower court the
appellate court shall lock first to the
evidence and proceedings on the frs,
trial. and if II discovers that the court
erred in setting aside the verdict on
that trial it shall set aside and annul
All SuDSctiutnG proceedings ana enter
Judgment on the first verdict.
The defendants counsel insist that
the trial court may have set aside tn"
verdict on one Of several grounds,
either of which was sufficient to Justify
it's action One of these grounds is
that plaintiffs action was based upon
an agreement between partners or Joint
tenants. and that one partner or joint
tenant cannot sue another in assuuT i,Sir
with respect TO chattcls held jointly or
in partnership.
The contract sued on was not an
agreement between the parties as part
ncrs or joint tenants. 1t was n con-
tract between them as individuals for
the pnrchasc Of property 10 be div ded
equally between them when purchased
and for its violation by either the olher
had the right to sue at law to recover
damages for it's breach. Another
ground relied on IS that the plant IF
failed to show that he had rendered
performance of the contract on his part.
II this were true It could avail moth
ing. for ii is settled law that where n
party to Il contract absolutely repud-
iatcS it, as the defendant did in this
case bN denying its existence, it cX-
cuscs The "ther party from making any
tender OF performance on his part.
The remaining ground relied on is
rFHr me IETcpnTeTt WIS frtcry5Ttt 1rIrf vIt
because it's purpose and necessary effect
| was tn suppress bidding and prevent
tait- competition when the whiSkcy was
sold. If such was the purpose or nee
"ssary effect OF the agreement. the
court properly set aside the verdict. for
where property is to be sold at auc-
ION. and especially where the sale is
made by order of n court or is made in
course of governmental administra ton.
II secret combination and agreement
among persons interested IN bidding
whereby they stipulate to refrain from
bidding. in order 20 prevent competition
ana 10 lever the selling price Of the
property is illegal. according to the
uniform decision of this country But i:
is not necessarily corrupt for Two or
more persons TO agree that one OF them
shall purchase for their Joint benefit
property sold al judicial or other pub
lie sale. Whether such a combination
is lawful or otherwise depends upon
the intention of the parties and the
effect Of the arrangement. (The court
then goes on TO rccite the evidence in
the case. and continues):
The agreement was oral and made
between the parties for n purpose which
was legal or illegal according to the
intent with which it was entered into
or the effect which 1t would necessarily
have upon the bidding at the sale. This
was question of fact for the iliry
They found in favor of it's validity and
II cannot be said that their verdict was
plainly against the evidence or withou.
evidence to support it.
We are Of opinion. therefore that thc
trial court erred in setting aside the
verdict upon the first trial, and that ali
SUBSEQUENT proceedings in the case