Greenbrier Farms, Inc. v. Clarke
| Decision Date | 16 June 1952 |
| Docket Number | No. 3930,3930 |
| Citation | 71 S.E.2d 167,193 Va. 891 |
| Parties | GREENBRIER FARMS, INCORPORATED v. EVELYN W. CLARKE. Record |
| Court | Virginia Supreme Court |
Jas. G. Martin & Sons and Samuel Goldblatt, for the plaintiff in error.
Herbert & Bohannon, for the defendant in error.
The plaintiff below, Mrs. Clarke, in April, 1945, filed her notice of motion for judgment against the defendant, Greenbrier Farms, Incorporated, making these allegations:
She had developed a new variety of camellia, unlike any previously grown, a flower of exquisite beauty and unusual coloring and appearance. In 1943 the defendant's agents saw this camellia in bloom and requested permission to take cuttings for the purpose of growing plants for the market, agreeing at the time to pay the plaintiff 'a royalty or commission on each plant sold.' In 1944 defendant took additional cuttings from said camellia bush and likewise took cuttings in February, 1945, for grafting, all with the same agreement to pay the plaintiff a royalty or commission. In the 1945 camellia show in Norfolk the defendant exhibited blossoms from the plaintiff's plant, the camellia being named 'Mrs. Clarke,' and had taken orders for plants grown from said cuttings and graftings. On March 29, 1945, plaintiff requested defendant to specify the amount that would be paid to her under the agreement made when the cuttings were taken, but the defendant repudiated said agreement and denied any obligation to the plaintiff.
The notice further alleged that the said camellia was one of rare and unusual beauty and defendant would 'profit enormously' from the sale of plants grown from the clippings and grafts; that the plaintiff would have been entitled to royalties or commissions for many years to come, amounting to large sums annually; and that by reason of defendant's repudiation of said agreement she was damaged to the extent of $7,500.
The plaintiff filed a bill of particulars stating, among other things, that no definite percentage or commission was fixed in the agreement with the defendant and that the plaintiff was entitled to the usual percentage paid in such cases, which was 50% of the sales price of the plants; and, further, that if the plaintiff did not prove a binding contract, by reason of the vagueness of the terms, she was entitled to recover the value of the cuttings and grafts taken by the defendant under its promise to pay.
The defendant moved to strike out the bill of particulars as being unresponsive to its motion that it be filed and as setting up new matter, demurred to the notice and pleaded the statute of frauds, all of which the court overruled. A jury heard the evidence and returned a verdict of $2,000 for the plaintiff, which the court set aside and put the plaintiff on terms to accept $1,000 or submit to a new trial. The plaintiff accepted the terms under protest and assigned cross-error to the reduction.
The defendant made seven assignments of error, the first three of which relate to the pleadings.
It argued that its demurrer should have been sustained because the notice was too vague and indefinite, setting forth no definite contract, no breach and no definite damages. As stated above, the notice alleged that the defendant took cuttings and grafts from the plaintiff's prize camellia bush for the purpose of growing and marketing plants therefrom, and under an agreement to pay plaintiff a royalty or commission on each plant; that the defendant had taken orders for the plants, and when afterwards requested to state the amount that it would pay the plaintiff, the defendant repudiated its agreement and denied all obligation, resulting in damage to the plaintiff in the amount sued for.
The notice sufficiently stated a cause of action and it was not error to overrule the demurrer. The object of a motion for judgment or declaration is to set forth the facts which constitute the cause of action so that they may be understood by the defendant who is to answer them, by the jury who are to ascertain whether such facts exist, and by the court which is to give judgment. Burks Pl. & Pr., 4 ed., § 334 at p. 639; Eckles v. Norfolk, etc., R. Co., 96 Va. 69, 71, 25 S.E. 545. The substance of the decisions of this court 'is that even though a declaration or motion for judgment may be imperfect, if it is so drafted that the defendant cannot mistake the true nature of the claim, the trial court should overrule the demurrer, and, if defendant desires more definite information, or a more specific statement of the grounds of the complaint, he should request the court to require plaintiff to file a bill of particulars.' Alexander v. Kuykendall, 192 Va. 8, 14-15, 63 S.E. (2d) 746, 749-50.
Neither did the court err in refusing to strike out the bill of particulars that was filed. It did not make a different case or add a new theory, as argued by defendant. The notice alleged an agreement to pay a royalty or commission on sales and a refusal by the defendant after the cuttings were taken to specify the amount, followed by its denial of any obligation. The bill of particulars gave notice that if the plaintiff failed to prove an express agreement on compensation she would claim compensation on the basis of the value of the property taken under defendant's promise to pay. From the notice of motion, as supplemented by the bill of particulars, the defendant could not have been, and as the development of the case demonstrated, was not, misled or mistaken as to the cause of action alleged and the object of the motion. Kennedy v. Mullins, 155 Va. 166, 179-80, 154 S.E. 568, 572.
The plea of the statute of frauds alleged that the contract sued on was not to be performed within a year, and hence was not enforceable because not in writing. Code, 1950, § 11-2(7). The plea was not applicable to the cause of action alleged nor to the case made by the evidence and no reversible error was committed in overruling it. The plaintiff performed her part of the alleged agreement when she furnished the clippings. The agreement alleged was not one that she could not perform within a year. "(An) agreement does not fall within the statute if that which one of the parties is to do is all to be performed within a year; in other words, the agreement must contemplate nonperformance by both parties within the year.' Deferred payments do not change the situation. ' Smith v. Payne, 153 Va. 746, 758, 151 S.E. 295, 299.
Defendant next asserts that the court erred in not setting aside the verdict and granting it a judgment or a new trial, and that the judgment granted was contrary to the law and the evidence. The evidence was in conflict on practically all material points, and it must now be considered as the jury had a right to evaluate it to determine whether it was sufficient to support their verdict.
Plaintiff's camellia bush was 13 or 14 years old and was budding when Thrasher, defendant's agent, saw it in the spring of 1943 and was attracted by it. He inquired its name, which plaintiff did not know, and took away the bud in an effort to get it identified. He came back later and told plaintiff that those to whom he showed it, including his expert at Greenbrier Farms, had never seen anything like it before. He told the plaintiff he thought the commercial value of it was very good; that he would like to take some clippings and try to grow them and if he could grow them he would see if they could get a patent on the camellia and pay her royalties on it. Robinson, propagator of camellias for defendant, was with Thrasher on that trip and later, in September, 1943, Robinson came back and took 102 clippings; again in 1944 he took 80 clippings and in February, 1945, Thrasher took approximately 45 clippings for grafts.
At the 1945 camellia show in Norfolk this camellia was exhibited by the defendant, and at the 1946 show at William & Mary College, at which it took first prize, Thrasher told an inquirer that his company had exclusive sales rights on this camellia and that the smallest one he could get, 12 or 15 inches high, would be about $15.
In 1945, and before the show of that year, Thrasher came to the plaintiff's home and offered her $250 for the camellia bush, which the plaintiff declined. The plaintiff then inquired what Thrasher was going to do about the clippings he had already got, to which Thrasher replied he wasn't going to do anything; that he had already paid for them by the plantings which had been done for the plaintiff. This referred to some azaleas and shrubs that the defendant had caused to be planted on the plaintiff's premises in 1943, which the plaintiff said were worth, at the most,...
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