Vance v. Maytag Sales Corp.

• Citation: 159 Va. 373
• Parties: FRED V. VANCE v. MAYTAG SALES CORPORATION AND W. W. MCBRIDE.
• Decision Date: 22 September 1932
• Court: Supreme Court of Virginia

Page 373

159 Va. 373

FRED V. VANCE v. MAYTAG SALES CORPORATION AND W. W. MCBRIDE.

Supreme Court of Virginia, Staunton.

September 22, 1932.

Present, Campbell, C.J., and Holt, Epes, Hudgins and Gregory, JJ.

1. PLEADING — Filing of Pleas — Discretion of Trial Court. — The filing of pleas is a matter within the sound discretion of the trial court.

2. PLEADING — Filing of Pleas — Discretion of Trial Court — Time of Filing Pleas of the Statute of Limitations — Case at Bar. — In the instant case it was assigned as error that the court should have allowed the defendants to file their pleas of the statute of limitations on the day of the trial. The pleas were filed over the objection of the plaintiff in error, on the day of trial, but before the trial had actually commenced.

Held: That the court had not abused its discretion in connection with the filing of the pleas.

3. FRAUD AND DECEIT — Limitation of Actions — Whether One Year or Five Year Limitation Applies — Case at Bar. — In the instant case the action was entirely based upon an alleged false and fraudulent promise made by an alleged agent of the Maytag Sales Corporation to plaintiff, which induced the latter to enter into a dealer's franchise to sell Maytag washing machines in six named counties. It was alleged that the agent urged the plaintiff to enter into the franchise agreement for the six counties and promised that if plaintiff would enter into the franchise he would be given, in addition to the six counties named, two other counties as soon as plaintiff "opened up for business, and as much additional territory as he wanted as soon as his organization was complete." It was conclusively shown that although the plaintiff opened for business March 27, 1927, the two additional counties were never added to the territory originally granted.

Held: That the one year statute of limitations applied in an action based upon the alleged fraudulent promise that the plaintiff would be given additional territory.

4. PARTIES — Assignments — Assignment of Dealer's Contract for Sale of Washing Machines — Action by Assignor — Fraud and Deceit — Limitation of Actions — Case at Bar. — In the instant case plaintiff brought his action of tort against a corporation based upon a fraudulent promise by the corporation that plaintiff would be given further territory when he began business, which induced him to take a dealer's franchise with the corporation for six counties. Immediately after plaintiff procured this franchise he transferred all of his rights thereunder to the Vance Maytag Company.

Held: That no right of action existed in plaintiff individually. If any right of action existed, and if it were assignable, it belonged to the Vance Maytag Company, and not the plaintiff. If it were not assignable then the one year statute of limitation barred plaintiff's action.

5. FRAUD AND DECEIT — Evidence Not Showing Damage to Plaintiff — Case at Bar. — The instant case was an action for fraud in which plaintiff asserted that he had been induced to enter into a dealer's contract with a washing machine corporation by a fraudulent promise made by an alleged agent of the corporation that if plaintiff would enter into the franchise he would be given, in addition to the six counties named, two other counties as soon as plaintiff "opened up for business, and as much additional territory as he wanted as soon as his organization was complete." The record failed to show that plaintiff had proven any damages with sufficient certainty to justify a verdict in his favor.

Held: That plaintiff could not recover.

6. FRAUD AND DECEIT — Statute of Limitations — When Cause of Action Arises — Promise to Give Dealer in Washing Machines Further Teritory — Case at Bar. — In the instant case, an action for fraud, plaintiff, a dealer in washing machines, based his case on an alleged false promise made to him by defendants, which induced him to enter into the first franchise agreement, that he would be given two additional counties as soon as he "opened up for business" and as much additional territory as he would want as soon as his organization was complete. Neither these two counties nor any additional territory was given him when he "opened up for business" on March 27, 1927, and, according to his testimony, the promise on that date was violated. When he was not given the additional territory on March 27, 1927, he was bound to have known, at that time, that the promise had been broken, and his cause of action, if any he had, then arose.

7. FRAUD AND DECEIT — Statute of Limitations — When Cause of Action Arises — Promise to Give Dealer in Washing Machines Further Territory — Case at Bar. — In the instant case, an action for fraud, plaintiff, a dealer in washing machines, based his case on an alleged false promise made to him by defendants which induced him to enter into the first franchise agreement, covering six counties, that he would be given two additional counties as soon as he "opened up for business" and as much additional territory as he would want as soon as his organization was complete. Plaintiff opened up for business on March 27, 1927. If it be assumed that plaintiff did not know at that time that the promise had been broken and if his cause of action did not then arise, the subsequent correspondence between the parties clearly showed that he would not be given any additional territory. This corespondence antedated the time when the action was instituted by more than a year. In addition to this a new franchise agreement was entered into by plaintiff's successor and the washing machine company and the old franchise was cancelled. In this new franchise the same six counties were granted, but the additional territory was withheld. He must have known that he would not obtain this additional territory and was therefore bound to know that the promise had been broken and that this cause of action had arisen. Between the time when the new franchise was granted and the institution of the present action more than a year had elapsed.

8. ASSIGNMENTS — Actions for Torts — Survival — All actions ex delicto are not assignable, even in equity. Only such actions ex delicto as survive to or against the personal representative, if one of the original parties dies, are assignable. Actions for wrong to property, real or personal, or which grow out of breach of contract survive, but not actions for wrongs done to the person or reputation, or any purely personal wrong, apart from property or contract.

9. LIMITATION OF ACTIONS — Application of Tort or Contract Limitation — Object of the Action Determines the Limitation. — Whether the limitation to be applied in a particular case is a tort or contract limitation, where either may be brought, is determined by the object of the action and not simply by its form. If the injury sought to be redressed is merely personal, whether resulting from breach of contract or from tort, the action dies with the person and the tort limitation applies.

10. FRAUD AND DECEIT — Action Based upon Promise to Give Dealer in Washing Machines Further Territory — Action against Washing Machine Corporation and Alleged Agent — Statute of Limitations — Case at Bar. — The instant case was an action by plaintiff against the Maytag Company, a washing machine corporation, and its alleged agent, based upon an alleged false promise that if plaintiff would enter into a dealer's franchise in addition to the six counties named in the franchise plaintiff would be given two other counties. The Supreme Court of Appeals was of the opinion that the one year statute of limitations plead and sustained by the evidence in the case was a complete bar to the cause of action asserted therein, and if the Maytag Company had been properly before the court the said statute would have been a bar to the cause of action, if any the plaintiff had, against that company.

Error to a judgment of the Corporation Court of the city of Bristol, in a proceeding by motion for a judgment for damages. Judgment for defendants. Plaintiff assigns error.

The opinion states the case.

W. H. Robertson, George M. Warren and H. E. Widener, for the plaintiff in error.

Morton & Parker and W. H. Rouse, for the defendant in error.

GREGORY, J., delivered the opinion of the court.

The plaintiff in error instituted his action at law against the defendants in error, for fraud and deceit, a pure tort. After the evidence had been introduced, a demurrer to the evidence was interposed by the defendants in error. Later the jury returned a verdict for the plaintiff in error for $2,820.00, subject to the ruling of the court on the demurrer to the evidence. The court sustained the demurrer and entered judgment for the defendants in error.

Vance, the plaintiff in error, who was a resident of the city of Bristol, Tennessee, was issued what is denominated in the record as a "Dealer's Franchise" to sell Maytag washing machines in the counties of Giles, Pulaski, Wythe, Bland, Carroll and Grayson, all in Virginia. The franchise was executed on January 20, 1927, by the Maytag Company, a Delaware corporation of the one part, and Fred Vance, Trading as the Vance Maytag Company, of the other part. It was also signed by W. W. McBride, district manager. The franchise granted to Vance the exclusive right to sell Maytag washing machines in the six counties designated.

The Maytag Company manufactured the washing machines at Newton, Iowa, and at the time the franchise was signed, sold them through divisional managers to the local dealers, after issuing to them the "Dealers Franchise." The dealer would purchase the machines from the Maytag Company, in Newton, Iowa, in car-load lots and then sell them by retail in his territory.

Before Vance began operations as a dealer, he, together with H. H. Galloway and Henry Doriot, secured a charter of incorporation under the name of "The Vance Maytag Company, Incorporated," with a capital of $5,000.00 which was...