Smith v. Snyder

• Citation: 82 Va. 614
• Parties: SMITH v. SNYDER
• Decision Date: 02 December 1886
• Court: Virginia Supreme Court

82 Va. 614

SMITH v. SNYDER

Supreme Court of Appeals of Virginia.

December 2, 1886

Error to judgment of circuit court of city of Richmond, rendered 25th February, 1884, in an action of assumpsit, wherein Asa Snyder is plaintiff, and James C. Smith is defendant.

This case is sequel to the case of Smith v. Snyder, 77 Va. 432, to the syllabus and statement whereof reference is made for the facts.

Opinion states the case.

Meredith & Cocke, for the plaintiff in error.

Guy & Gilliam, and Jackson Guy, for the defendant in error.

OPINION

FAUNTLEROY J.

This case is at the bar of this court a second time. It was heard and decided April 26th, 1883, and is reported in 77 Va. (2 Hansbrough) 432.

In June, 1880, the defendant in error, Snyder, instituted his action of trespass on the case in the circuit court of the city of Richmond against the plaintiff in error, Smith alleging the breach of a contract alleged to have been made on the 19th day of September, 1879, for the sale by him to the defendant in error, Snyder, of 150 tons of iron, to the extent of 110 tons, and his consequent damages to the extent of $2,000.

On November 6th, 1880, the cause was called for trial; the plaintiff in error, Smith, pleaded non assumpsit; a jury was sworn, the evidence introduced; three instructions were asked for by the defendant in error, Snyder, and four by the plaintiff in error, Smith, and all were refused by the court; and three instructions were given by the court of itself. The case was argued and submitted to the jury, who rendered a verdict for the defendant in error, Snyder, the plaintiff in the suit, for $1,740.79, November 9th, 1880; a motion to set aside the verdict, as being contrary to the evidence and the law, was made, and overruled by the court, and judgment was rendered upon the verdict for the plaintiff, Snyder; and two bills of exception were taken, in which the evidence was certified, and all the instructions, both those offered and refused, and those given, were set out.

A writ of error was granted to the plaintiff in error, Smith; and the case was reviewed in this court in an elaborate and well considered opinion upon the law and the facts of the case, and the verdict was set aside, and the judgment of the circuit court was reversed, and the cause was remanded to the said circuit court for a new trial to be had therein in conformity with the views of this court in said opinion, fully and distinctly expressed, and with directions that if, upon such new trial, the evidence should be substantially the same as upon the former trial, and the defendant, the plaintiff in error, shall again ask for the said first and second instructions which were refused at the former trial, the same shall be given.

The cause was accordingly remanded to the circuit court, and came on there for trial again on the 22d February, 1884, upon the same issue; when a jury was sworn, the evidence introduced, two instructions asked for by the defendant in error, Snyder, were refused, four asked for by the plaintiff in error, Smith, of which the first three were given, and the fourth was refused; and then an instruction was given by the court of itself, which was a modification of the second instruction asked for by the defendant in error, Snyder, and refused by the court; the case was argued and submitted to the jury, who rendered a verdict $1,740.79, with interest thereon from February 9, 1880, in favor of the defendant in error, Snyder, which is exactly the same as the former verdict. A motion to set aside the said verdict upon the ground that it is against the law and evidence of the case, was made and was overruled; and two bills of exceptions were taken, in which all the evidence is certified and all the instructions, both those offered and given, or refused, and that given by the court itself, are set out, except the second instruction offered by the defendant in error, of which the court's own instruction is a modification. Upon this record and the petition of the plaintiff in error, Smith, the cause is here again.

In the first bill of exception the plaintiff in error complains of the action of the circuit court in refusing to give the fourth instruction asked for by him; and in giving the instruction, which is a modification of the second instruction asked for by the defendant in error. The fourth instruction asked for by the plaintiff in error and refused by the court is as follows: " Further, that if they believe from the evidence that by the original contract an immediate delivery was intended, and that the plaintiff (Snyder), by his letter of October 11th, intended to bind himself, to wait for three weeks from the date of that letter, then he is not entitled to sue on the original contract, and they must find for the defendant."

We think the circuit court erred in refusing to give this instruction. It was warranted both by the facts and the law. Snyder contended that he was entitled to an immediate delivery. It was on that theory he based his claim, and made several imperative demands for delivery before October 11 1879, when he wrote to Smith: " The party for whom I purchased the 150 tons of old rails will wait the three weeks you designated for delivery," & c., & c. In his letter of October 30th, he admits having agreed to postpone the time of delivery. These letters show a binding, irrevocable promise to wait until November 1, 1879, for he wrote " that time will expire on the 1st of November proximo, at which time I shall be ready to receive and pay for them." After Smith received the letter of October 11, 1879, Snyder had so bound himself that he could not have brought suit before that date; and such a binding promise is the making of a new contract and an abrogation of the old one. The record shows that this promise to wait was entirely voluntary on the part of Snyder; that Smith did not request it, and that Snyder made the suggestion in reply to the letter from Col. Douglas to Smith, of date _____ _______, saying that he hoped to be able to deliver the iron in about three weeks; which letter Smith had promptly sent to Snyder as he had done with all the frequent other communications from Col. Douglas touching the delivery of the old rails from the York River railroad. (See the cases of Stead v. Dawber, 10 Ad. & El. 57; Ogle v. Vane, 22 B. L. R. 282; Hickman v....