Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-10-21
COURT DECISIONS.
DlGESTED BY W. B. MARTIN
EXCLUSIVELY FOR
viRcINiAN-P
Notes of Cases Recently Decided
which Are Of Interest to
Our People.
GRUBB v. BURFoRD.
supreme Court Of Appeals of Virgin
September 70, 1900.

Supiehie Court OF Appeals OF Virginia,
september 20 1900.
SPECIAL COURT FOR TIM
BREACH OF "A SEALED AGREE
MENT MAY NOW BE JOINED IN
DECLARATION WITH THE
COMMON COURTS IN ASSUMPSIT
THE PERFORMANCE OF A CON.
DITION PRECEDENT MUST Re
ALLEGED. OR a VALID EXCUSE
GIVEN FOR ITS NON-PERFORM-
ANCE.
PROFITS EXPECTED FROM Flu
TORE BARGAINS OR STATES OF
The MARKET ARE NOT GENER-
ALLY SUBJECTS OF RECOVERY.
The points decided are shown by the
opinion oil the court:
The court says:
Inc iirst assignment of error is to
the action OF the court in overruling
the demurrer to the declaration and tn
each count thereof
Inc ground of demurrer to the whole
declaration is that there is q misjoin-
uer Oh counts. All the counts are COM
mon counts in aSsumpSit, except the
last' winch is special count upon or
LOT the breach OF an agreement under
sea-. There is no doubt that at com
mon law these counts could not be
united In one declaration, and that
such misjoinder would he fatal upon
general demurrer. But by Act of AS
semby approved January %, 1898, Acts
le9i-S, p. 1O3. 1t is provided, THAT in
any case where an action of covenant
VIII lie there may be maintained an
action of assumpsit." Under that act
assumpsit could be maintained upon
the writing sued on in the special
count, as it is clear that an action of
covenant would lie upon It,
Since an action of aSsumpsit will lie
upon the cause of action in the last
count as we'll as upon the several
causes of actions in the other counts.
we see no reason why rney may not
he properly united in one action of as
sumpsit, as was done in this case.
The common counts in the declara-
ton being admittedly good the demur-
rer 10 the declaration as n whole was
properly overruled.
This brings us to the considera ton OF
the demurrer to the last count. by the
agreement set out in that count, the
plaintiff defendant in error had
leased from the defendants certain iron
ore lands and other property for the
period OF one year, with the right to
renew the lease for q further term up
on certain conditions. one of the
grounds of objection to that count is
that by II the plaintiff sought to re-
cover damages because he had been
elected from, and deprived of the use
of. the leased premises for the second
term after he had elected to renew
the lease, without averring that he had
performed the conditions upon which
he was entitled to renew 1t. The slip
ulation in the agreement for the re-
ncwal of the lease is as follows:
Provided that the said lessee, hav-
ing performed all his covenants in this
agreement contained, may at his OPP
ton renew this lease and continue this
letting on the terms and conditions
herein set forth for a further term of
four years"
The lessee's right to a second term by
the express terms of the agreement is
made dependent upon his performances
of all the things he had covenanted to
do during the first term, and he cannot
recover damages upon that agreement
for the defendants refusal to renew
and continue the lease for the second
term unless he AYERS and proves per-
Torrance on his part at the time and
in the manner stipulated. or gives some
valid excuse for his non performance
During the progress Of the trial parol
evidence of the construction which the
parties had placed upon the written
agreement sued on was allowed 10 go
to the jury. This we think was error
as there is no such ambiguity in the
writing as would render such evidence
admissible.
Witnesses were allowed to testify as
to the profits which the plaintiff would
have made out OF his lease if he had
boon perroitea te held efftli-tf1ftrc- tin.
property for the second term. Their
estimates for the most part were purely
oonjectural.
In ascertaining damages where there
is an interference with. or n withhold
ing of, property. or n breach of con
tract, the gain prevented, if provable.
may be recovered
Profits. which are the difference be-
tween the agreed price of something
contracted for and it's ascertainable
value or costs, are recoverable as in
the case of the Allegheny Iron Co. V.
Teaford. But where the profits are de-
pendent upon future bargains or states
of the market, they are not, as gene
raj rule. subjects of recovery. Re-
versed.
ATLANTA ". STEIN.
Supreme Court of Georgia.