Quick v. Southern Churchman Co.

• Decision Date: 21 November 1938
• Docket Number: Record No. 1974.
• Citation: 171 Va. 403
• Parties: AUSTIN T. QUICK v. SOUTHERN CHURCHMAN COMPANY, INC.
• Court: Virginia Supreme Court

Page 403

171 Va. 403

AUSTIN T. QUICK v. SOUTHERN CHURCHMAN COMPANY, INC.

Record No. 1974.

Supreme Court of Virginia, Richmond.

November 21, 1938.

Present, All the Justices.

1. TRIAL — Transfer of Cases — When Authorized. — Section 6084 of the Code of 1936 authorizes the transfer of cases from one side of the court to another only where the case is brought on the wrong side of the court, and gives no authority for the arbitrary transfer of a case, with or without motion of the parties, except where the question of a proper jurisdiction of the subject matter is involved.

2. TRIAL — Transfer of Cases — Statute Remedial — Purpose. — Section 6084 of the Code of 1936, authorizing the transfer of cases from one side of the court to the other, is remedial and not technical, and was enacted to protect the rights of parties and to save costs and delay.

3. JURY — Trial by Jury — When Facts in Conflict. — A party has a right to a trial by jury when the facts are in conflict, and in such a case to deprive a person of that right is a denial of a substantive right.

4. JURY — Trial by Jury — Waiver. — The right to a jury trial may be waived.

5. JURY — Trial by Jury — Denial Where There Is No Issue of Fact to Be Submitted. — If there is no issue of fact to be submitted to a jury, and there is nothing to be decided by a jury, a denial of a jury trial is not a denial of a substantive right.

6. TRIAL — Transfer of Cases — Allegation in Bill Not Proper Objection to Transfer — Case at Bar. — In the instant case, an action for breach of contract, the court discharged the jury, of its own motion, and entered an order transferring all matters in controversy to the equity side of the court. The record showed no objection at this point to the action of the judge, nor any exception filed thereto, but later plaintiff filed a paper entitled "A Bill in Equity," in which he recited that he "duly objected" to the order transferring the case.

Held: That, since the allegation in the bill of complaint was merely a statement of one of the parties, and not a certificate endorsed by the judge, there was no proper objection to the action of the court in removing the case from the jury.

7. JURY — Trial by Jury — Waiver — Proceeding in Equity after Order Transferring Case — Case at Bar. — In the instant case, an action for breach of contract, the court discharged the jury, of its own motion, and entered an order transferring all matters in controversy to the equity side of the court. The record showed no objection at this point to the action of the judge, nor any exception filed thereto, but later plaintiff filed a paper entitled "A Bill in Equity," in which he set forth a cause of action identical with the previous notice of motion, and recited that he "duly objected" to the order transferring the case.

Held: That plaintiff was not obliged to file his bill in equity, since the order directing the transfer could have been treated as appealable, and he could have stood on his right to proceed at law, but instead he chose to take his chances in equity.

8. TRIAL — Transfer of Cases — Harmless Error — Absence of Issue of Fact to Be Presented to Jury — Case at Bar. — In the instant case, an action for breach of contract, the court discharged the jury, of its own motion, and entered an order transferring all matters in controversy to the equity side of the court. The record showed no objection at this point to the action of the judge, nor any exception filed thereto, but later plaintiff filed a paper entitled "A Bill in Equity," in which he recited that he "duly objected" to the order transferring the case. The action was one purely at law, where there was a complete and adequate remedy, but all essential facts in the case were admitted, and there was no issue of fact to be presented to a jury, the sole questions presented being questions of law.

Held: That the error in transferring the cause was one as to the form of procedure and did not go to the merits of the case.

9. APPEAL AND ERROR — Harmless Error — Where No Other Proper Judgment Could Have Been Reached. — Where no other proper verdict or judgment could have been reached in the trial court, an error in procedure must be regarded as harmless, since, under section 6331 of the Code of 1936, an error is harmless when a party does not suffer prejudice thereby.

10. APPEAL AND ERROR — Scope of Review — Prejudicial Errors and Irregularities. — Appellate courts must regard substance rather than form, for they are created to correct errors and irregularities that are prejudicial to the substantial rights of the party assigning them, and not to correct all irregularities that may occur on the trial of a case.

11. CONTRACTS — Construction — Questions of Law and Fact — Right to Terminate Contract. — Where a contract provides that it may be terminated by either party "for just cause" upon thirty days' written notice, and the facts are admitted, whether one party had the right to terminate the contract is purely a question of law. $12. CONTRACTS — Construction — Right to Terminate — "Just Cause" and "Legal Cause" Distinguished. — "Just cause" or "good cause," as used in a contract provision permitting termination of the contract by either party "for just cause" upon thirty days' written notice, is not synonymous with legal cause. The right to cancel for a legal cause exists independently of the contract, and one can terminate any contract for legal cause, for which no extension of time is required after a notice. On the other hand, "just cause" or "good cause" cannot be reduced to a legal certainty. To be effective, it must relate to the circumstances relied on; the grounds upon which it is based must be reasonable; there should not be an abuse of the conferred right; it must be a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power, and it limits the party to the exercise of good faith, based upon just and fair grounds as distinguished from an arbitrary power. To this extent, it includes causes outside of legal causes.

13. CONTRACTS — Right to Erminate — Circumstances Constituting "Just Cause" — Case at Bar. — In the instant case, an action for breach of contract by an agent against the publisher of a religious newspaper because of defendant's termination thereof, the contract in question provided that it might be terminated by either party "for just cause" upon thirty days' written notice. The evidence showed that plaintiff and defendant were each insolvent; that it was costing more to publish and circulate the paper than defendant was realizing therefrom; that the agent had drawn a sum in excess of the amount he was entitled to under the contract, and that both parties were going further and further into debt every month, so that a termination of the contract relation would manifestly avoid loss to each of them, and there was nothing to indicate that conditions would improve in the future. The agent admitted that he was unable to perform his part of the contract.

Held: That the entire circumstances afforded good and just cause for bringing the contract to an end.

14. CONTRACTS — Breach — Damages — Speculative and Conjectural Damages — Case at Bar. — In the instant case, an action by an agent against the publisher of a religious newspaper for breach of a contract providing that the agent was to receive commissions for subscriptions, donations and advertising, the agent based his claim for damages on the fact that if his subordinates, in the future, could bring in larger additional subscriptions, could sell considerable advertising space, and induce further donations, his profits would amount to large sums, but these estimates were based on circumstances entirely contingent upon the existence of conditions more favorable than those which had already existed, and there was no degree of certainty whatever that the business could have been procured, nor the estimated amount of profits realized.

Held: That the damages suggested were too speculative and conjectural.

15. CONTRACTS — Commission Contract for Obtaining Advertising and Subscriptions — Effect of Cancellation of Subscriptions — Case at Bar. — In the instant case, an action against the publisher of a religious newspaper for breach of contract, judgment was entered for defendant for advances made to plaintiff in excess of the amount to which he was entitled under the contract. The contract provided that plaintiff was to receive commissions for securing subscriptions, but that cancelled subscriptions should be deducted from the commissions, and defendant assigned cross-error on the ground that the judgment should be increased to cover the cancellation of additional subscriptions subsequent to the termination of the contract, but the evidence of such subsequent cancellations and of the conditions surrounding the cancellations was not sufficiently stated to base a finding thereon.

Held: That the Supreme Court of Appeals was unable to say, in view of the time and manner in which the cancellations were made, that defendant was entitled to recover therefor.

16. APPEAL AND ERROR — Reversal — To Save Technical Point of Law or Gratify Private Opinion. — The Supreme Court of Appeals will not grant a new trial merely to save a technical point of law, or to gratify a private opinion when the same result must be reached in any proper proceeding.

17. APPEAL AND ERROR — Harmless Error — Transfer of Case from Law to Equity Side of Court. — Where an action for breach of contract was improperly transferred by order of the trial court, of its own motion, from the law to the equity side of the court, but a decree which was entered against plaintiff was for the smallest amount that could have been found against him, no possible good could be served plaintiff by sending the case back to be tried in a court of law, since the only result would be to delay a judgment for the amount already found and...