Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-04-04
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are of Interest to
Our People.
DIGESTED BY W. B. MARTIN,
Exclusively for virginian-Pilot.)
WILSON v. DAWSON.

February 2, 1892
UNDER CODE, OF VIRGINIA, SEC
TION 3.211. A PARTY CANNOT I.l1-
COVER, ON A MOTION. DAMAGES
FOR AN INJURY RESULTING
FROM A BREACH OF CONTRACT.
This case was Il motion made under
section S,2i1 OF the Code of Virginia,
prior to its amendment by the acts OF
1895 for damages resulting from the
preach OF n contract. The lower court
gave judgment for plaintiff and de-
PENDANT appealed. The court says
The verdict and judgment complained
OF plainly include items 81 and rs of the
account sued on, which are for profits
the plaintiff alleged she would have
made upon the work which She was to
do under her contract had there been
no breach of X on the part OF the de-
PENDANT: that is, for DANA ges claimed
by her by reason of the breach of the
contract on the part of the defendant,
ana the question presented at the
Threshold of the case is, can the plain
tiff recover. upon motion under section
S,2ll OF the Code as 1t stood when this
action was brought, damages for
preach of her contract with Wilson &
Co.?
IF the contract is such that the per-
son making the motion Is entitled to
recover MONEY upon 1t by ACTION.
he is entitled to rroceed to do so by
motion, whether his right is based upon
an expressed or implied contract Tho
remedy extends to all cases in which
person Is entitled to recover money by
action on contract"
Section 3,2l1 Of the Code, rs II stood
when this action was brought. pro-
money by ACTION ON ANY CON
TRACT NAV on motion. obtain tudr-
ment therefor" There have been
amendments to this section which may
nfltg Il
We have nothing TO do.
In discussing this subject Barton
says: 1T will he observed however that
the statute confines this motion to cases
where one would he entitled to recover
money by ACTION ON ANY CON
TRACT. as distinguished from actions
usually termed sounding in damages"
Clearly X was not intended by tho
statute In anordng n more speedy
remedy for the enforcement Of con-
tracts by the recovery of money due
thereon by motion. to extend this mode
or proceeding to actions usually term
ed sounding in damages" Damages
Tor an Injury resulting from n breach of
contract recoverable in an action
. sounding in damages" can in no sense
: be considered money due on contract
Z Reversed.
TRUSTEES oBERLTN COLLEGE V.
BLAIR.
Supreme Court OF Appeals. West Va.
a TRUSTEE WHO HAS SOLD PROP
ERTY MAY AFTERyNARDS BUY IT
FROM THE PURCHASER, IF HIS
SALE WAS IN GOOD FAITH AND
HE HAS FULLY DISCHARGED
HIS TRUST IN REGARD THERE
TO.
This was suit brought to lnvalidate
n Inv In;
ground that he had as Il trustee sold It
10 purchaser, and afterwards bought
an interest in 1t himself from said pur-
CHASER which was claimed to be n
fraud on the parties for whom Blair
acted as trustee. The lower court held
the sale invalid and Blair and the other
purchasers appealed. The court says:
The litigation In this case is mani
festly the result of a train Of circum-
stances which not infreuuently occurs
in this state of late years, when a few
acres OF barren. unproductive hill land
become suddenly of immense value. by
reason OF the discovery of petroleum in
the immediate vicinity. and the former
owner hnds he has been too hasty in
parting with his title. and seeks some
loophole by which to regain his possess
slonS. The circumstances relied upon by
the complainant to establish the fraud
relied on to invalidate the sale made by
Blair, trustee. to Mcmillan. of tho land
COMPASS, and cluster around the sale
made In. February. 1892.
Here the court discusses the facts of
the case, and proceeds.1
i At the time of the sale to Mcmillan
so FAR as the evidence discloses no one
was aware of the existence of oil in tho
sullivan well, EXCEPT the Immediate ON
ployes of the South Penn Oil Company.
In the case of Walker V. Carringt0n
a ILL., AS. the court held that while
1T Is true that n trustee or agent cannot
be interested in sale made by him
SELF. yet when he has fully discharged
his trust, and sold property to n third
person in good faith. having no interest
I'm the same at the time, he NAV after
wards acquire the title from the pur
chaser and such fact. or the fact that
his wife acquires the title. will not af-
ford ground for avoiding his sale"
The agency of n real estate aren't
and his duty to his principal ceases
upon the delivery of the title napers
and payment for the property" After
the termination OF the agency. tho
agents have the same right as any other
persons to deal in the property"
But there is no evidence in the case
mat Blair contemplate ted becoming in
terested in the property at the time he
mace the sale to Mcmillan. Upon this
question of fraud this court held. in
the case of Harden V. Wagner % w
va. 3b6, that "the onus orobandi Is on
him who alleges fraud and, If the
fraud Is not strictly and clearly prov
ed. as 1t Is alleged. relief cannot be
granted, although the party against
'Whom relief is sought may not have
been perfectly clear in his dealings"
The general principles applicable to
cases or fraudulent representation are
wei settled. Fraud is never presumed.
and. where 1t is alleged. the facts sus
III OF y,N ~