Newport News & O. P. Ry. & Electric Co v. Bickford

• Decision Date: 08 March 1906
• Citation: 105 Va. 182,52 S.E. 1011
• Court: Virginia Supreme Court
• Parties: NEWPORT NEWS & O. P. RY. & ELECTRIC CO. v. BICKFORD.

52 S.E. 1011

105 Va. 182

NEWPORT NEWS & O. P. RY. & ELECTRIC CO.

v.BICKFORD.

Supreme Court of Appeals of Virginia.

March 8, 1906.

1. Judgment—Res Judicata —Matters Concluded.

On a motion by a lessor for a judgment for rent due under the lease, the lessee set up a claim for damages arising from wrongful acts of the lessor. The lessee had previously instituted a suit for specific performance, in which the lessor was compelled to renew the lease for another term. The suit was terminated before the acts complained of by the lessee had been committed. Held, that the decree in the suit in equity was not res judicata on the question of the lessee's claim for damages.

2. Same.

On motion by a lessor for judgment for rent, it appeared that a suit had been previously filed by the lessee asking that the lessor be enjoined from placing guards at the gates to the fence around the leased premises, etc. A temporary injunction was granted, which was subsequently dissolved in vacation on the ground that the matters involved were within the jurisdiction of the federal courts. Held, that the suit did not prevent the lessee from setting up a claim for damages arising from the lessor's wrongful interference with the leased premises.

3. Pleading—Bill of Particulars—Authority to Require.

Where, on a motion by a lessor for a judgment for rent, the lessee set forth in detail acts of trespass committed by the lessor on the leased premises v. hereby the lessee's business was destroyed, it was not error to refuse to require the lessee to file a statement giving the particulars of his defense: the object of Code 1887, 8 3249 [Va. Code 1904, p. 1709], authorizing the court to require the filing of a statement of the particulars of the ground of defense, being to give plaintiff notice of the defense relied on.

4. Landlord and Tenant: —Motion for Judgment for Rent—Set-Off.

On a motion by a lessor for judgment for rent due under the lease, a claim by the lessee for damages growing out of trespasses committed by the lessor on the leased premises is directly connected with and grows out of the contract forming the basis of the lessor's action, and the lessee may assert the claim as an offset, under Code 1887, § 3299 [Va. Code 1904, p. 1740], authorizing defendant in an action on contract to file a plea of set-off for any matter which would entitle him to damages from plaintiff.

5. Set-Off and Counterclaim — Action in Which Remedy is Available—Motion for Judgment for Rent.

A motion by a lessor for a judgment for rent is an action at law, within Code 1887, § 3299 [Va. Code 1904, p. 1740], authorizing defendant in an action on a contract to file a plea of set-off.

[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Set-Off and Counterclaim, § 16.]

6. Writ of Error—Error in Verdict—Right of Defeated Party to Complain.

The error in a verdict for a sum less than its face shows that the prevailing party is entitled to is no ground of complaint on the part of the defeated party.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4060, 4061.]

7. Same — Briefs — Suggestion of Errors— Review.

Errors suggested in the brief of plaintiff in error, filed after the brief of defendant in error was filed, cannot be considered.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3097.]

Error to Circuit Court, Elizabeth City County.

Motion for judgment by the Newport News & Old Point Railway & Electric Company against J. V. Bickford. There was a judgment for defendant, and plaintiff brings error. Affirmed.

S. Gordon Cumming, for plaintiff in error.

B. A. Lewis, S. J. Dudley, and Ashby & Read, for defendant in error.

HARRISON, J. The foundation of this motion for judgment is an open account which grows out of a lease contract between the plaintiff as lessor and the defendant as lessee, dated March 21, 1903, supplemented by additional terms dated April 16, 1904.

In addition to the general issue, the defendant pleaded an eviction from the leased premises, and also filed three special pleas. These pleas aver that the plaintiff's motion is based upon a written lease for certain hotel premises known as "Buekroe Beach, " situated about three miles from the town of Hampton, Va.; that under the terms of the lease the defendant was to have absolute control of the premises as a summer resort, and to be free from any molestation or interference by the plaintiff; that although the defendant had fully performed the contract of lease on his part, yet the plaintiff had wholly disregarded and broken the same. The pleas then set forth in detail the most flagrant acts by the plaintiff of trespass upon the leased premises and violation of the defendant's rights, whereby his business was broken up and destroyed. The damage thus sustained is pleaded as offset to the plaintiff's demand.

The result of the trial was a verdict andjudgment in favor of the defendant for $429.38.

Considering the assignments of error in the order set forth by the plaintiff in its petition to this court, we are of opinion that the contention that the defendant's claim for damages was res adjudicata is not well founded.

It is insisted that this claim for damages had been settled in two chancery suits theretofore terminated in the circuit court of Elizabeth City county. The same judge who sat in the causes mentioned conducted the trial of the case at bar, and held, we think properly, that the matters set up in these pleas were not settled or intended to be concluded by the decrees in the chancery causes vouched by the plaintiff. One of these causes was a suit for specific performance, which compelled the plaintiff to renew this lease with the defendant for the year 1904. It was terminated before the acts complained of were committed by plaintiff, and therefore could not have adjudicated the present controversy. The other cause was a bill filed by the defendant asking that the plaintiff be enjoined from placing guards at the gates to the fence around the leased property and from interfering with the defendant's management thereof. A temporary injunction was granted, which was subsequently dissolved in vacation, upon the ground that the matters involved were then under the control and direction of the Circuit Court of the United States for the Eastern District...