Gary v. Abingdon Pub. Co

• Decision Date: 08 July 1897
• Citation: 27 S.E. 595,94 Va. 775
• Court: Virginia Supreme Court
• Parties: GARY v. ABINGDON PUB. CO. et al.

27 S.E. 595

94 Va. 775

GARY

v.ABINGDON PUB. CO. et al.

Supreme Court of Appeals of Virginia.

July 8, 1897.

Misjoinder of Causes of Action.

A declaration with two counts, one for property received, which defendants promised to account for, and one for the conversion of property casually lost by plaintiff, is bad on a general demurrer for misjoinder of a count in contract with one in tort

Appeal from circuit court, Washington county.

Action by Mary R. Gary, committee of George W. Gary, against the Abingdon Publishing Company and others. From an order sustaining a demurrer to the declaration, plaintiff appeals. Affirmed.

D. Trigg and P. J. Davenport, for appellant.

Honaker & Hutton and F. T. Barr, for appellees.

KEITH, P. Mary R. Gary, committee of George W. Gary, plaintiff, brought an action of trespass on the case in the circuit court of Washington county, and filed the following declaration:

"Mary R. Gary, committee of Geo. W. Gary, plaintiff, complains of the Abingdon Publishing Company, a corporation under the laws of the state of Virginia, S. M. Withers, W. F. Smyth, and L. T. Cosby, defendants, being summoned, of a plea of trespass on the case, for that, to wit, on the — day of ——, 189-, the defendants were Indebted to George W. Gary in the sum of one thousand five hundred dollars for property, money, accounts, bills, and credits belonging to the said George W. Gary, which was taken, received, collected, and applied by them, the said defendants, to their own use, without the consent or authority of the said George W. Gary, but which they afterwards promised to account for, pay, return, and deliver to the said George W. Gary and to the said plaintiff upon their request.

"And afterwards the said George W. Gary became and was duly declared a lunatic, and the plaintiff was duly appointed his committee by the county court of said county.

"Yet the said defendants, although often requested so to do, have failed and refused to account for, pay, return, or deliver to the said plaintiff the said property, money, accounts, and.bills and credits so taken by them, and used and appropriated as aforesaid, either to the said George W. Gary or to the plaintiff, but to account for, pay, return, or deliver the same as aforesaid they have hitherto neglected and refused, and still do refuse, to the plaintiff's damage $1,600.

"And for this, also: That heretofore, to wit, on the——day of——, 189, the said George W. Gary was lawfully possessed, as his own property, of certain books of accounts, property, accounts, bills, and credits, to the value of, to wit, the sum of $1,539.86, and, being so possessed of the same, the said George W. Gary afterwards, to wit, on the —— day of ——, 18—, first above mentioned, casually lost said books of accounts, property, accounts, bills, and credits out of his possession, and the same afterwards, to wit, on the day and year first aforesaid, came to the possession of the said defendants by finding; and afterwards the said George W. Gary became insane, and was duly adjudged to be insane, and the plaintiff was duly appointed his committee by the county court of said county.

"Yet, the said defendants, well knowing the property, books of accounts, accounts, bills, and credits to be the property of the said George W. Gary, and to the plaintiff, but contriving and fraudulently intending to deceive and defraud the said George W. Gary and the said plaintiff in this behalf, have not as yet delivered to the said George W. Gary or to the plaintiff the said property, accounts, books of accounts, bills, and credits, or any or either of them, or any part there-of, although often requested so to do, and afterwards, to wit, on the day aforesaid, converted and disposed of the said property, accounts, books of accounts, bills, and credits to their own use, to the damage of the plaintiff $1,600, and therefore the plaintiff brings his suit, " etc.

To this declaration, and to each count thereof, the defendants demurred. The demurrer was sustained, and the cause remanded to rules, with leave to the plaintiff to file an amended declaration....