Barnes v. Morrison

• Decision Date: 14 September 1899
• Citation: 34 S.E. 93,97 Va. 372
• Parties: BARNES. v. MORRISON.
• Court: Virginia Supreme Court

34 S.E. 93

97 Va. 372

BARNES.

v.MORRISON.

Supreme Court of Appeals of Virginia.

Sept. 14, 1899.

AUCTION—CONTRACT—LEGALITY—TENDER OF PERFORMANCE—EVIDENCE.

1. A contract between plaintiff and defendant that defendant should purchase for them jointly, at an auction, certain property, it to be divided between them, and plaintiff to pay defendant half the purchase price, is not an agreement between them as partners or joint tenants, but as individuals, so that an action for damages will lie for breach thereof.

2. Testimony admitted without objection, in an action for damages for breach of agreement to turn over to plaintiff a large quantity of whisky at the price at which defendant bought it at auction, that it was worth or had been selling at a certain amount per gallon, will be considered evidence of market value.

3. A party, by absolutely repudiating a contract, as by denying its existence, excuses the other party from tender of performance before action for damages.

4. Where plaintiff, owner of half the whisky, which was being sold for taxes, attended the auction sale to look after his interests, and, arriving when it was in progress, got the collecting officer to suspend the sale for a short time, during which he proposed to defendant who had made the last bid, that they jointly purchase it, and plaintiff be allowed to take the barrels belonging to him, which defendant declined to do, the agreement then made, at defendant's suggestion, that he would buy it all for them jointly, and they would divide it, barrel about, not being made to influence the bidding either of them or to prevent competition, but solely for the purpose of enabling plaintiff to become purchaser of the amount he had previously owned, is not illegal.

Error to corporation court of Roanoke.

Action by one Barnes against one Morrison. Judgment for defendant Plaintiff brings error. Reversed.

Hoge & Hoge, for plaintiff in error.

Wm. Gordon Robertson and John H. Lewis, for defendant in error.

BUCHANAN, J. Upon the first trial the jury rendered a verdict for the plaintiff, which was set aside by the court, on motion of the defendant On the second trial there was a verdict and judgment for the defendant. To that judgment this writ of error was awarded.

By section 3484 of the Code, as amended (Acts 1889-90, p. 36; Acts 1891-92, p. 962), it is provided that, where there have been two trials in the lower court, the appellate court shall look first to the evidence and proceedings on the first trial, and, if it discovers that the court erred in setting aside the verdict on that trial, it shall set aside and annul all subsequent proceedings, and enter judgment on the first verdict.

The grounds upon which the court was asked to set aside that verdict were that It was contrary to the law and the evidence, and was excessive. No objection appears to have been made, nor exception taken, to the introduction of evidence, to the instructions given, or to any rulings of the court during the progress of the trial. The only question to be considered, therefore, is whether the case made entitled the plaintiff to the verdict found.

The action was brought to recover damages for the breach of an alleged contract entered into between the plaintiff and defendant, by which it was agreed that the defendant should purchase for himself and the plaintiff jointly some 5, 000 gallons of whisky, which were being sold at public auction by a collecting officer of the United States government to satisfy certain taxes and dues thereon. By the terms of the contract, as set out in the declaration, it was agreed that the defendant should bid off for himself and the plaintiff the entire lot of whisky, which was to be divided equally between them, either by the barrel or the gallon; that the plaintiff should pay to the defendant one-half of the purchase price, which was to be applied to the payment of the taxes and dues for which the whisky was sold. The declaration avers that the defendant, pursuant to the agreement, did purchase the whisky, but afterwards refused to allow the plaintiff to have any part of it, although he (the plaintiff) then and there and afterwards offered to pay the defendant his pro rata share of the purchase price and to comply in every particular with the agreement on his part.

From the facts agreed, it appears that there was due from Jamison & Prillman, manufacturers of whisky in the city of Roanoke, the sum of $3,025, for taxes and deficiencies to the United States government, for the payment of which one of its collecting officers advertised and sold on the distillery premises about 4, 500 gallons of whisky, at $1.12 per gallon.

The plaintiff testified that he was the owner of about 2, 500 gallons of the whisky (63 barrels); that he had purchased it from the State Savings Bank at the price of 60 cents per gallon, the bank having previously purchased it at 80 cents per gallon, each agreeing in his contract of purchase to pay the taxes thereon; that at the time the collecting officer sold the whisky he (the plaintiff) attended the sale to look after his interests; that when he arrived the sale was in progress, and the whisky was being cried at $1.11 per gallon; that he spoke to the collector, and asked him to hold up the sale; that he was then introduced to the defendant, who had made that bid, and had a conversation with him, in which he proposed that they jointly purchase the whisky, and that he (the plaintiff) be allowed to take the barrels shown to have been originally purchased by him; that the defendant declined the proposition, but agreed that he would buy all the whisky for himself and the plaintiff jointly, and that "they would divide it barrel about"; that T. F. Jamison (of the firm of Jamison & Prill-man) was present during the conversation, and close enough to have heard it; that the agreement between the defendant and himself was not made by either party to influ-ence the bidding, nor to prevent competition at the sale, but only to enable the plaintiff to become the purchaser of the amount of whisky that he had previously bought; that they were jointly interested in the purchase, but there was no agreement that they should not bid against each other. On cross-examination, the plaintiff testified that he had gone to the sale for the purpose of protecting his interest, and that, if the defendant had refused to make the agreement which they did make, he would have bid on the whisky, as he had made arrangements to get money.

The plaintiff also testified that the defendant refused to deliver to him one-half of the whisky when he demanded it on the day it should have been delivered; and introduced in evidence a letter from himself to the defendant in which he stated that he would be ready to take his half of the liquor recently bought, as per their agreement, at the warehouse, and requested the defendant to let him know the day he would be in Roanoke to divide the whisky; and also the defendant's reply, in which he stated that he knew of no arrangement between them for the plaintiff to take one-half of the liquor bought at Roanoke, at cost.

The plaintiff further testified that he believed the whisky was worth $2.50 per gallon on the day it ought to have been delivered (November, 1896); that he had offered it to Wheeling people in 1893 and 1894 at $2 per gallon. The plaintiff then introduced as witnesses the members of the firm of Jamison & Prillman, the manufacturers of the whisky, who were present at the day of the sale. The former testified that he heard the agreement between the plaintiff and defendant, which was that the latter should buy the whisky for himself and the plaintiff, each paying half of the purchase price, and that it was worth on the day of sale $2.50 per gallon. The other member of the firm testified that he knew the whisky in question, and that they had been selling it prior to the sale for taxes at from $1.60 to $2.50 per gallon; that whisky improved with age.

Another witness introduced by the plaintiff testified that he had been storekeeper of the United States at the distillery of Jamison & Prillman, where the whisky in controversy was stored; that he had known it to sell for $2.50 per gallon; and that whisky improved with age.

The defendant, to sustain his defense, introduced himself and two other witnesses. He testified that there was no contract between himself and the plaintiff for the purchase of the liquor; that he purchased it for himself, and had no arrangement with the plaintiff by which he was to become interested in it; that he would not take another lot of liquor at the same price, as it was not worth what he paid for it.

One of his witnesses testified that he bought of the defendant five barrels of the whisky at $1.12 per gallon; that he thought $1.30 per gallon was a good price for it On cross-examination, he admitted that he was then selling a part of it by retail at 65 cents per quart, but it was not very salable.

The other...