Am. Manganese Co v. Va. Manganese Co.1

• Decision Date: 28 March 1895
• Citation: 21 S.E. 466,91 Va. 272
• Parties: AMERICAN MANGANESE CO., Limited. v. VIRGINIA MANGANESE CO.1
• Court: Virginia Supreme Court

21 S.E. 466

91 Va. 272

AMERICAN MANGANESE CO., Limited.

v.VIRGINIA MANGANESE CO.¹

Supreme Court of Appeals of Virginia.

March 28, 1895.

Counterclaim — Unliquidated Damages — Construction op Contract—Conduct of Parties—Payment and Discharge.

1. Code 1887, § 3299, which allows a defendant to plead as a counterclaim "any other matter, as would entitle him either to recover damages at law from the plaintiff * * * or to relief in equity, " will not permit him to set up unliquidated damages, based upon breach of a contract other than that sued on.

2. Where the terms of a contract were not clear whether royalties on ore were to be computed when the ore was wet or dry, the acceptance by the mine owner for seven years of settlements on a dry weight, with full knowledge of the facts, estops him to claim a different construction.

3. If one owing an unascertained sum of money offers his creditor a sum, declaring that it is in full payment, the contract is discharged by the acceptance of such sum.

Error to circuit court, Albemarle county.

The plaintiff below, the American Manganese Company, brings error from a judgment rendered against it on a counter claim by the Virginia Manganese Company. Reversed.

Richard P. Bell, for plaintiff in error.

Geo. Perkins and Thos. S. Martin, for defendant In error.

BUCHANAN, J. The first assignment of error in this case is to the action of the circuit court in overruling the demurrer of the plaintiff in error, which was the plaintiff In the court below, to special plea No. 2, filed by the defendant.

The demurrer raises the question whether under our statutes (section 3299, Code), allowing special pleas of set-off to be filed, a defendant can set up a claim for unliquidated damages founded upon a contract other than the contract sued on by the plaintiff. The claim of the defendant that the contract sued on and the contract set up in its plea, for whose alleged breach it seeks damages, are parts of the same contract, cannot be sustained, as the pleadings show very clearly that they are separate and distinct agreements.

The defendant insists that the provision of section 3299 of the Code, which allows a defendant to plead "any other matter, as would entitle him either to recover damages at law from the plaintiff or the person under whom the plaintiff claims, or to relief in equity, in whole or in part against the obligation of the contract" sued on, is sufficiently broad to allow him to plead "any cause of action arising also on contract, express or implied, and existing at the commencement of the action, and such counterclaim may be either for liquidated or unliquidated damages."

If the term, "or any other matter, " authorizes a defendant to make such a defense, is it not also sufficiently broad to authorize him to set up any claim for damages that may be due him arising out of tort as well as contract, and existing when plea is filed as well as when the action is brought? Why limit it to claims arising out of contracts, or to causes of action existing when the plaintiff institutes his action? There is nothing in the term "or any other matter" which justifies a construction which would include the one and exclude the other. The language of the term "or any other matter" is sufficiently broad, considered by itself, to include both of the defenses named; but, considered in connection with its context and tested by settled rules of construction, I do not think It includes either. One of these rules of construction is that general words may be limited to the same genus or class as the specific words which precede them.

In Sutherland on Statutory Construction (section 268) it is said that "when there are general words following particular and specific words, the former must be confined to things of the same kind."

In Broom's Legal Maxims (side page 651) the rule is laid down as follows: "Where a particular class [of persons or things] is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class; the effect of general words when they follow particular words being thus restricted."

Sedgwick, in his work on Construction of Statutes (page 361), says: "Where general words follow particular words, the rule is to construe the former as applicable to things or persons particularly mentioned."

The decisions of the court fully sustain the text-writers, that this is the true rule of construction in such cases, subject to certain limitations not necessary to be mentioned here. City of Lynchburg v. Norfolk & W. R. Co., 80 Va. 237; Iron Co. v. Riche, L. R. 7 H. L., at pages 664, 665; Insurance Co. v. Hamilton, 12 App. Cas. 484, 486; People v. New York & M. B. Ry. Co., 84 N. Y. 565; State v. McGarry, 21 Wis. 496; St. Louis v. Laughlin, 49 Mo. 559.

Applying this rule of construction to the language under consideration, and the conclusion necessarily follows that unliquidated damages based upon breach of a contract, other than the contract sued on by the plaintiff, cannot be set up in a plea, under section 3299 of the Code. The particular defenses provided for in the preceding words of that section are: (1) Failure in the consideration of the contract; (2) fraud in its procurement; (3) breach of warranty of the title or the soundness of personal property, for the price or value whereof he entered into the contract.

Each of these defenses is based upon matters directly connected with, and injuries growing out of, the...