Minnick v. Williams

Decision Date04 October 1883
Citation77 Va. 758
PartiesMINNICK v. WILLIAMS.
CourtVirginia Supreme Court

Error to judgment of circuit court of Rockingham county, rendered October 28th, 1881, in an action of debt wherein William Minnick for & c., was plaintiffs, and Samuel C. Williams was defendant. The action was brought on the following writing obligatory:

" Article of agreement made and entered into this 4th October, 1869, by and between William Minnick of the first part, and Williams & Slaymaker of the second part whereby the said Minnick agrees to let to said Williams &amp Slaymaker the store-room and cellar in the hotel building at Broadway station, Orange, Alexandria and Manassas railroad with all the appurtenances attached thereto, and the warehouse at the north end of the store-room, with the grounds extending from the lower end of the warehouse next to the creek, running north to the public street, and thence to the said road, and from the street to the south corner of the store-room, running out to the railroad, to have and to hold full possession of the said rooms and apartments and grounds as above described for and during the term of two years, to commence from the 4th October, 1869, at and for the sum of $150 the first year, and $200 the second year, payable in monthly instalments, either in goods at regular prices or current money; and it is further agreed that when the lessees quit the premises they shall leave them in as good condition and repair as they are now, reasonable wear and tear excepted in the transaction of their business." This was signed and sealed by the parties. The declaration set forth the contract as the consideration for which the defendant " promised to pay to the plaintiff the sum of $150 for the first year, meaning thereby the year commencing October 4th 1869, and ending October 4th, 1870, and the sum of $200 for the second year, meaning thereby the year commencing October 4th, 1870, and ending October 4th, 1871," and concluded with the usual averment in debt. To this declaration the defendant demurred, on the ground that covenant, not debt, was the proper action on such an instrument. The circuit court sustained the demurrer and dismissed the suit. To this judgment Minnick obtained a writ of error from one of the judges of this court.

J. E. Roller, for plaintiff in error.

J. H. Williams, for defendant in error.

OPINION

LACY J.

The appellee insists, for ground of demurrer, that an action of debt will not lie upon the contract above recited, because it was not a contract to pay a sum of money certain, but was an agreement to pay money or " goods at regular prices."

The appellant insists that when a person contracts, in the alternative, to do one of two things by a given day, he has, until the day is past, the right to elect which of them he will perform; but if he suffers the day to elapse without performing either, his contract is broken, and his right of election is lost.

The action of debt only lies for money. On an obligation to pay or deliver any other article, covenant is the proper remedy; and the recovery is, of a compensation in damages; " goods at regular prices" cannot be considered as money.

If a contract is to pay money simply, debt will lie; when it is to deliver any other article, covenant will lie; the proper remedy is debt in the one case, covenant in the other.

When an obligation is to pay money in a fixed quantity of some other article, as of goods, bonds, or other articles other than money, of a certain nominal amount, covenant will lie. But when the obligation is to...

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3 cases
  • Mankin v. Jones
    • United States
    • West Virginia Supreme Court
    • December 20, 1910
    ...Turpin v. Sledd's Ex'r, 23 Grat. (Va.) 238; Stewart v. Donelly, 4 Yerg. (Tenn.) 177; Gilbert v. Danforth, 6 N. Y. 585; Minnick v. Williams, 77 Va. 758. There is another theory, consistent with reason, authority, and the proof in the case, on which assumpsit can be maintained for this item o......
  • Mankin v. Jones
    • United States
    • West Virginia Supreme Court
    • December 20, 1910
    ... ...          M. F ... Matheny, File & File, and Sanders & Crockett, for defendant ... in error ...          WILLIAMS, ...          Plaintiff ... recovered a judgment in assumpsit against defendant in the ... circuit court of Raleigh county on the 23d of ... 520; Turpin v. Sledd's Ex'r, 23 Grat. (Va.) ... 238; Stewart v. Donelly, 4 Yerg. (Tenn.) 177; ... Gilbert v. Danforth, 6 N. Y. 585; Minnick v ... Williams, 77 Va. 758 ...          There ... is another theory, consistent with reason, authority, and the ... proof in the case, ... ...
  • Greer v. Doriot
    • United States
    • Virginia Supreme Court
    • November 15, 1923
    ...to other cases not falling strictly within it. In the argument for the plaintiff, Henderson v. Lightfoot, 5 Call (9 Va.) 241, Minnick v. Williams, 77 Va. 758, and Max Meadows Land Co. v. Bridges, 95 Va. 184, 27 S. E. 839, are relied on to sustain the position that, as the defendant would no......

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