The times. [volume] (Richmond, Va.) 1890-1903, 1901-03-15

Struct the jury, W hich was done duu LIS
is the first assignment of err
The Court Of Appeals held that IT was
error to so instruct the jury as & the
defendant was not relieved from the duty
to exercise ordinary diligence IN man
ufacturfng the ice 1t had undertaken TO
furnish, Ind was only protected from
liability in the event it was unable 70
furnish itwithout default on It's part II
was also held that in so far as the de-
fendnnts was unable to furnish the ice
from day to day and failed to furnish It
or cause 1t to be furnished, it is not en-
titled to pay by way of offset therefor.
and the jury should have been SO in-
structed.
Judgment reversed, verdict set aside
SEGREGATION Between Partners.
Sands vs. Durham. From Circuit Court OF
Giles county Opinion by Judge White
An opinion was delivered in this case
June. 1900, e Va, Sup. CT. r., p. SOD put
the court not being satisfied with the con-
c.usions then reached, a rehearing was
granted. There is but one question pre-
sented, viz: 'Where al partnership mas
been dissolved and the social assets ex-
hausted, and judgments subsequently re-
covered against the members of the hrm
or partnership have been paid by one Oh
the partners, who is not i'll arrears 70
the firm out of his individual means, ana
this is shown by a settlement OF the part
persl1ip accounts is the partner VINO mas
| paid the judgments entitled TO De supro-
gated to the rights Of the creditors whose
judgments he has satisfied against the
! real estate of his copartner, in the hands
of a subsequent purchaser, to the extent
to which his payments exceed MS plopoiS-
| tional rsart of the liability?
After a thorough review Of the decisions
| Upon this question, the court held that
| the Circuit Court in decreelng that ao-
! MELEE was entitled to be subrogated to
| the rights Of the judgment creditor, whose
| liens he had discharged; and in subjectins
! the real estate owned by his copartner,
| n A. Early. at the date of the recovery
and docketing of said judgment, to their
| setisfaction was correct and should,
! therefore, be affirmed.
Claims Of Sub=Cortractors.
! schrieber, Sons & Co. VS.. The Citizens.
| Bank of Norfolk &C. From the Law ana
| Chancery Court of Norfolk. Opinion by
| Judge Harrison.
| The appellants, who are among the SUB
! contractors of L. r. May, the general
| contractor seek to hold the bank llaple
| for their services in completing the plli a-
| ing of the bank. Under an agreement
! with the general contractor the bank was
| TO hold is per cent. of the cost price OF
| the building until all work was competed.
! The case was referred to a commits
| sioner, who reported that there was IN
| the hands Of the bank. unpaid on the
| building, a balance of S4.44t.i0. and that
after the completion of the building as
| per contract. the bank had in hand, APP
! uicable TO unpaid claims, So, $685. out OF
| which had to be first paid two claims OF
| s., S65 03 of superior dignity, and the resi-
| due disbursed pro rata among the re-
! manning claimants. a decree was entered
| confirming this report, from Which TINS
| appeal was taken.
It was held on review that the payments
| made by the bank and which were cam
! planned OF. were in all cases correct, ana
! that the appellant had not perfected It's
| lien as contemplated by section 249i, Ccue,
and that as it did not perfect it's lien IN
time it could not (by section 2ilO exceed
the amount in which the owner was theii
indebted to the general contractor ana
that appellant would have to share pro
rata as to the unpaid balance.
| Judgment affirmed
Question of Bad Faith.
Virginia Carolina Chemical Company rs.
Carpenter and Company. From the
I Law and Chancery Court OF Norfolk
Opinion by Judge Harrison.
| This case was before this court upon a
writ of error awarded the plaintiff in the
| court below, and an opinion handeu ooWil
- '
Va) The action was to recover damage
] for the refusal of the Virginia Carolina
| Chemical Company to take from Carpen-
/ ter and Company certain Tennessee phos-
phate rock alleged to have been sold the
defendant which it refused to accept. The
defense was that the rock was offered to
and accepted by the defendant on the
express condition that 100 tons was to be
shipped to experiment with, and that the
defendant was to take the remainder If
the sample of 100 tons proved satisfactory
in quality and condition. The defendants
declined to accept the rock upon the
ground that it was not satisfactory.
The Sist of the former decision was
| that it was for the jury to say. upon
proper Instructions, whether or not the
defendant acted in good or bad faith in
declining to take the rock upon the ground
that it was not satisfactory.
1t appears from the record now before
the court that the case has gone to the
jury upon proper instructions. and the
sole question to be determined is whether
or not the evidence is sufficient to sustain
the verdict in favor of the plaintiff, which
is necessarily based upon the conclusion
that the defendant was guilty of bad
faith in declining to take the rock.
The Court Of Appeals held that the
charge of bad faith was not made out
with the clearncsS and distinction re-
quired in such cases. Judgment reversed,
verdict set aside and case remanded.
| On Peadings.
Briggs vs. Cook From Law and Chan
Gerry Court of Norfolk city. opinion
by Judge Keith P.
w. c. Cook filed notice of motion for
judgment in trial court against G. S.
Briggs for q sum he claimed to be due
upon d contract.
/ The defendant pleaded non assumpsit,
I to which the plaintiff replied generally,
and also filed special plea claiming that
plaintiff owed him certain sum by way
Of set off, for which sum he prays iudS-
ment against plaintiff in excess OF his
demand 70 this special plea there was
no replica ton, and thereupon case was
tried by jury, which found a verdict for
the plaintiff. The defendant moved the
court to set aside this verdict and grant
him a new trial because no replica tion
had been filed to his special plea Of set
off and no issue Joined thereon; that
| judgment be entered on his plea of set