Oliver Ref. Co v. Portsmouth Cotton Oil Ref. Corp.

• Decision Date: 24 March 1909
• Citation: 64 S.E. 56,109 Va. 613
• Parties: OLIVER REFINING CO. v. PORTSMOUTH COTTON OIL REFINING CORPORATION. PORTSMOUTH COTTON OIL REFINING CORPORATION. v. OLIVER REFINING CO.
• Court: Virginia Supreme Court

64 S.E. 56

(109 Va. 613)

OLIVER REFINING CO.

v.PORTSMOUTH COTTON OIL REFINING CORPORATION.

PORTSMOUTH COTTON OIL REFINING CORPORATION.

v.OLIVER REFINING CO.

Supreme Court of Appeals of Virginia.

March 24, 1909.

1. Pleading (§ 216^*)—Demurrer—Scope of Inquiry.

In an action on a written agreement, where one count is the common count in assumpsit and the other counts are based on the agreement in writing, the question whether the agreement upon which the other counts were based could be introduced to sustain a recovery upon the common counts could not be determined upon a demurrer to those counts, but could only be determined on the trial when the evidence was offered.

[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 216.*]

2. Pleading (§ 204*)—General Demurrer.

Where a count contains several breaches, any one of which is well assigned, a general demurrer to the count should be overruled.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 487; Dec. Dig. § 204.*]

3. Principal and Agent (§ 183*)—Rights op Action by Principal or Agent — Contracts op Agent.

Where an agent contracts by deed in his own name, his principal cannot sue upon it. If an agent makes a contract not under seal in his own name for an undisclosed principal, either the agent or the principal may sue upon it.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 691-700; Dec. Dig. § 183.*]

4. Principal and Agent (§ 189*)—Actions-Pleading.

A declaration, in an action on a contract, which states that in making the contract one of the parties named therein acted for plaintiff, that the contract was afterwards approved by the stockholders of the defendant company as a contract with plaintiff, that plaintiff furnished the whole consideration to the defendant provided for by the contract, and that defendant company conveyed and transferred all the property mentioned in the contract to plaintiff, sufficiently avers that the party who made the contract acted as the agent of plaintiff.

[Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 189.*]

5. Contracts (§ 164*)—Construing Instruments Together.

Where two papers are executed at the same time or contemporaneously between the same parties in reference to the same subject-matter, they must be regarded as parts of one transaction and receive the same construction as if the several provisions were in one and the same instrument.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 746-748; Dec. Dig. § 164.*]

6. Contracts (§ 246*)—Modification—Operation and Effect.

Where parties to a contract, as preliminary to a conveyance of property under the contract, come together and make an agreement stipulating for the future adjustment of certain specific matters of difference between them, it will be assumed that they intended that, with the exceptions named, the provisions of the contract should in all other respects be treated as satisfied by the conveyance made, especially where the contemporaneous agreement in part relates to defects in property conveyed, which the original agreement provided should be in good condition when turned over, which turning over was done when the deed was made and the contemporaneous agreement entered into.

[Ed. Note.—For other cases, see Contracts, Dec. Dig. § 246.*]

7. Deeds (§ 94*)—Construction and Operation—Merger of Previous Agreements.

Where a deed has been accepted as a performance of an executory contract to convey real estate, the rights of the parties rest thereafter solely in the deed, although the deed varies from the one provided for in the contract, andthe law remits the grantee to his covenants in his deed, if there has been no fraud or mistake.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. § 266; Dec. Dig. § 94.*]

8. Evidence (§ 442^2-*)—Parol Evidence—Actions—Admissibility of Evidence.

An agreement for the transfer of certain property, including a manufacturing plant, specified that the plant was to be in good working condition when turned over, and that it was subject to the inspection of the party purchasing it as to its condition and working order before the acceptance of the deed. In an action by the purchaser for damages because the plant was not in working order, defendants offered in evidence an agreement between the parties, entered into at the time the deed was made, which provided that certain matters, including some that were specified as a cause of action by plaintiff, were reserved for future adjustment. Held, that the agreement was admissible in evidence.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1874-1899; Dec. Dig. § 442.*]

Error to Law and. Chancery Court of City of Norfolk.

Action by the Portsmouth Cotton Oil Refining Corporation against the Oliver Refining Company. Judgment for plaintiff, from which each party brings error. Reversed and remanded.

Williams & Tunstall and C. J. Collins, for plaintiff.

Thos. H. Willcox and J. W. Will-cox, for defendant.

BUCHANAN, J. An action of assumpsit was brought by the Portsmouth Cotton Oil Refining Corporation against the Oliver Refining Company. There was a verdict in favor of the plaintiff, a motion to set it aside, which was sustained upon the ground that the damages were excessive, and the trial court ordered that the verdict should be set aside and a new trial granted, unless the plaintiff would remit all of Its recovery except a named sum. The plaintiff remitted under protest, and a judgment was rendered for the reduced amount. To that judgment each party applied for and obtained a writ of error.

There was a demurrer to the declaration and to each count thereof, which was overruled.

The fourth was the common count in assumpsit. The other three counts were based upon the following agreement in writing:

"This agreement made and entered into this 13th day of July, 1906, by and between Oliver Refining Company (a corporation organized and existing under and by virtue of the laws of the state of Virginia), party of the first part, and Aspegren & Co., a copartnership consisting of Adolph Aspegren and John Aspegren, having their office in the Produce Exchange in the city of New York, witnesseth:

"The said second party has offered and does offer to the stockholders, directors and officers of the first party to purchase at and for the price of $125,000.00 the property de scribed as follows: All the buildings of the cooperage and refinery and the boiler house and all the machinery and fixtures therein contained, storage tanks, and thirty-one tank cars, railroad track and oil lands contained by a straight line running parallel to outside of railroad track of the refinery from the Norfolk & Portsmouth Belt Line Railroad, Paradise Creek, containing about seven acres of land, upon which said buildings and tracks are located, if more or less than seven acres are contained in said tract at the rate of five hundred dollars per acre shall be added to or deducted from said purchase price.

"The said first party also agrees to sell, and said second party agrees to buy at its present market value, all the stock in trade, consisting of barrels, caustic soda, fuller's earth and other material contained in said building and appertaining to said business and to pay therefor in cash.

"Said first party will cause a survey to be made of the lands included in this offer and will attach the same to this instrument, when presented to its stockholders, at a meeting called for the purpose of passing upon and ratifying this proposition.

"Payment of said sum of $125,000.00, the purchase price of said property in addition to said stock in trade, shall be made as follows: $25,000.00 thereof in cash upon the delivery of the deed by the first party, which delivery shall be made at the office of the said second party above stated; said deed to be made to Portsmouth Cotton Oil Refining Corporation, which last-named concern has been by said second party incorporated for the purpose of taking the title and issuing the securities hereinafter mentioned. Said second party agrees to take all proper and necessary steps to authorize the making, execution and delivery of a mortgage of $100,000.00 upon all of the property so transferred to it by the first party and to cause and procure the issue of $100,000.00 six per cent. bonds with coupons attached conditioned for the payment of said interest semiannually at the office of the trustee to whom such mortgage shall be made. Said mortgage and bonds to be a first lien upon all of the property of said corporation then owned by it and all improvements to or additions thereon or thereto, and the principal of said bond shall be payable in gold of standard weight and fineness in ten years from the date of such mortgage. Said bonds to be in denominations as follows: 200 bonds of $500 each.

"Said mortgage to contain provisions for the insurance and preservation of the property and all the ordinary and usual conditions attending like mortgages for securing a bond issue and shall be submitted for the approval of said first party before execution. The trustee therein shall be selected by said first party subject to the approval of said second party.

"It is understood that a meeting of the stockholders of the said first party has been called at the office of the company in Portsmouth, Va., for Friday, July 20, 1906, for the purpose of considering this agreement and proposition with a view to ratifying the same and authorizing the proper officers of the company to execute the necessary deeds and transfers.

"The deed of said property when executed and delivered is to be free and clear of all incumbrance and the plant to be subject to the inspection of said second party as to its condition and working order before the acceptance by them of the deed.

"The stock in trade so to be transferred shall be inventoried by said first party (and) shall be paid for at the fair market value thereof for the purposes of this agreement. It is understood that the aggregate of such stock...