Mears v. Accomac Banking Co. Inc

Citation168 S.E. 740
Case DateApril 07, 1933
CourtSupreme Court of Virginia

168 S.E. 740

MEARS.
v.
ACCOMAC BANKING CO., Inc., et al.

Supreme Court of Appeals of Virginia.

April 7, 1933.


EPES, J., dissenting.

Error to Circuit Court, Accomac County.

Action by Upshur T. Mears against the Accomac Banking Company, Incorporated, and another. Judgment for defendants, and plaintiff brings error.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

Mapp & Mapp and Herbert Barnes, all of Accomac, for plaintiff in error.

James E. Heath, of Norfolk, and Stewart K. Powell, of Onancock, for defendants in error.

CHLNN, Justice.

This is an action brought by Upshur T. Mears, herein referred to as plaintiff, against the Accomac Banking Company, Incorporated, J. Merritt Chandler, cashier of said bank, and J. Merritt Chandler individually, herein referred to as defendants, to recover damages for fraud and deceit.

The original declaration was demurred to by the defendants on the ground that it blended an action of tort with an action ex contractu. The demurrer was sustained with leave to the plaintiff to file an amended declaration, which was done. The amended declaration was then demurred to on the same ground, which demurrer was also sustained

[168 S.E. 741]

by the court, whereupon plaintiff asked leave to file a second amended declaration, which leave was granted upon condition that the plaintiff pay the costs which had accrued up to the date of the order sustaining the last-mentioned demurrer. This action of the court is assigned as error.

It appears that the plaintiff. filed his second amended declaration in accordance with the leave granted by the court and was allowed to develop his case thereunder as fully and completely as he could have done under the first amended declaration.

Practically the same situation arose in the case of Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245, 10S S. E. 15, 16. In that case the plaintiff filed an original and also an amended declaration to both of which the court sustained a demurrer, and the plaintiff by leave of the court filed a second amended declaration, a demurrer to which was overruled. The court said: "The plaintiff was permitted to prove its whole case under the second amended declaration, but, having excepted to the ruling of the trial court sustaining the demurrer to the original and first amended declarations, as provided by section 6116 of the Code, it insists that we shall pass upon the sufficiency of the original and amended declarations. If there was error in sustaining the demurrer thereto it was harmless, and the question presented is moot. The statute was not intended to apply to such a case. This court does not undertake to correct harmless errors."

After the conclusion of the plaintiff's evidence, the defendants, without introducing any evidence, moved the court to strike out all the evidence adduced by the plaintiff, on the ground "that said evidence did not make out a sufficient case to justify a verdict in favor of the plaintiff against either of said defendants, and upon the further ground that the evidence showed that any loss sustained by the plaintiff was the result of breach of contract and not by misrepresentations in tort." This motion was sustained by the court, which thereupon instructed the jury "that all the said evidence had been stricken from the record, and that there was nothing left for them to do but find for the defendants." The jury returned a verdict as thus instructed by the court, upon which verdict judgment was entered.

The plaintiff assigns as error: (1) The action of the court in striking out the plaintiff's evidence and directing a verdict in favor of the defendants; and (2) the entry of final judgment for the defendants. These assignments covering the same point will be considered together.

In Green v. Smith, 153 Va. 675, 151 S. E. 2S2, 283, Mr. Justice Epes, speaking for the court, said: "A motion to strike out all the evidence of the adverse party is very far reaching and should never be entertained where it does not plainly appear that the trial court would be compelled to set aside any verdict for the party whose evidence it is sought to strike out. * * * In considering a motion to strike out all the plaintiff's evidence, the evidence is to toe considered very much as on a demurrer to the evidence. All inferences which a jury might fairly draw from plaintiff's evidence must be drawn in his favor; and where there are several inferences which may be drawn from the evidence, though they may differ in degree of probability, the court must adopt those most favorable to the party whose evidence it is sought to have struck out, unless they be strained, forced, or contrary to reason. Dove Co. v. New River Coal Co., 150 Va. 796, 143 S. E. 317; Limbaugh v. Commonwealth, 141) Va. 393, 140 S. E. 133, 135; Goshen Furnace Corp. v. Tolley's Adm'r, 134 Va. 404, 114 S. E. 728."

Viewed in the light of these rules, the evidence introduced by the plaintiff, so far as necessary to determine the question presented, may be stated as follows:

Plaintiff was an unlettered farmer residing near the town of Parksley, where the defendant bank is located, and at the time the transaction involved occurred had been dealing with the defendant bank through its cashier, J. Merritt Chandler, in whom the plaintiff had great confidence and trust, for a number of years. In January, 1922, plaintiff had on deposit in the bank the sum of $3,000 which the bank, through Mr. Chandler, invested for the plaintiff in a local/farm mortgage; but the plaintiff never saw or received the security representing the loan, the bank retaining the same in its possession and merely giving the plaintiff a receipt therefor. The bank collected this loan on December 1, 1923, depositing the principal and accumulated interest, amounting to $3,105, to plaintiff's credit. Desiring to reinvest this money, plaintiff, after consultation with his brother-in-law, decided to turn it over for that purpose to Mr. Warner Ames, a prominent and responsible attorney of Accomac county, who, he was informed, made a practice of lending money for his clients and guaranteed the safety of such investments. On December 15, 1923. plaintiff went to Parksley for the purpose of withdrawing his money from the bank and intrusting it to Mr. Ames to invest for him. While on hist way to the bank, plaintiff happened to meet on the street Mr. Sylvanus Parks, vice president, and one of the directors of the bank, also well known to the plaintiff, and informed Mr. Parks what he proposed to do. Mr. Parks thereupon told the plaintiff: "Upsher, the Accomac Banking Company can lend your money out as safe as Warner Ames. * * * You have always been dealing with the Accomac Banking Company. * * * Whenever the Accomac Banking Company lends your money out and han-

[168 S.E. 742]

dies it in any way, you have two chances. If they put...

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21 practice notes
  • Rawle v. Mcilhenny
    • United States
    • Virginia Supreme Court of Virginia
    • November 15, 1934
    ...S.E. 282; Buchanan Wilson, 159 Va. 49, 165 S.E. 422; Catron Birchfield, 159 Va. 60, 165 S.E. 499; Mears Accomac Banking Co., 160 Va. 311, 168 S.E. 740; Bray Boston Lbr., etc., Co., 161 Va. 686, 172 S.E. 296; Jerrell Norfolk & P. Belt Line Ry. Co., 162 Va. 450, 174 S.E. 658; Leath R., F. & P......
  • Rawle v. Mcllhenny
    • United States
    • November 15, 1934
    ...v. Wilson, 159 Va. 49, 165 S. E. 422; Catron v. Birchfield, 159 Va. 60, 165 S. E. 499; Mears v. Accomac Banking Co., 160 Va. 311, 168 S. E. 740; Bray v. Boston Lbr., etc., Co., 161 Va. 686, 172 S. E. 296; Jerrell v. Norfolk & P. Belt Line Ry. Co. (Va.) 174 S. E. 658; Leath v. R. F. & P. R. ......
  • Diaz Vicente v. Obenauer, Civ. A. No. 89-0520-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 25, 1990
    ...is innocently or knowingly made. Chandler v. Satchell, 160 Va. 160, 168 S.E. 744 (1933); Mears v. Accomac Banking Co., 160 Va. 311, 168 S.E. 740 (1933). In contrast, to prove actual fraud, a plaintiff must show (i) a false representation by defendant, (ii) of a material fact, (iii) made int......
  • Enomoto v. Space Adventures, Ltd., No. 1:08cv861 (JCC).
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 3, 2009
    ...of the motion. An appropriate Order will issue. --------------- Notes: 1. Plaintiff also cites Mears v. Accomac Banking Co., 160 Va. 311, 168 S.E. 740, 744 (1933), for the proposition that "a promise [ ] is actionable as an act of fraud [if] it turned out to be untrue, causing damage to ano......
  • Request a trial to view additional results
21 cases
  • Rawle v. Mcilhenny
    • United States
    • Virginia Supreme Court of Virginia
    • November 15, 1934
    ...S.E. 282; Buchanan Wilson, 159 Va. 49, 165 S.E. 422; Catron Birchfield, 159 Va. 60, 165 S.E. 499; Mears Accomac Banking Co., 160 Va. 311, 168 S.E. 740; Bray Boston Lbr., etc., Co., 161 Va. 686, 172 S.E. 296; Jerrell Norfolk & P. Belt Line Ry. Co., 162 Va. 450, 174 S.E. 658; Leath R., F. & P......
  • Rawle v. Mcllhenny
    • United States
    • November 15, 1934
    ...v. Wilson, 159 Va. 49, 165 S. E. 422; Catron v. Birchfield, 159 Va. 60, 165 S. E. 499; Mears v. Accomac Banking Co., 160 Va. 311, 168 S. E. 740; Bray v. Boston Lbr., etc., Co., 161 Va. 686, 172 S. E. 296; Jerrell v. Norfolk & P. Belt Line Ry. Co. (Va.) 174 S. E. 658; Leath v. R. F. & P. R. ......
  • Diaz Vicente v. Obenauer, Civ. A. No. 89-0520-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 25, 1990
    ...is innocently or knowingly made. Chandler v. Satchell, 160 Va. 160, 168 S.E. 744 (1933); Mears v. Accomac Banking Co., 160 Va. 311, 168 S.E. 740 (1933). In contrast, to prove actual fraud, a plaintiff must show (i) a false representation by defendant, (ii) of a material fact, (iii) made int......
  • Enomoto v. Space Adventures, Ltd., No. 1:08cv861 (JCC).
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 3, 2009
    ...of the motion. An appropriate Order will issue. --------------- Notes: 1. Plaintiff also cites Mears v. Accomac Banking Co., 160 Va. 311, 168 S.E. 740, 744 (1933), for the proposition that "a promise [ ] is actionable as an act of fraud [if] it turned out to be untrue, causing damage to ano......
  • Request a trial to view additional results

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