Wessel v. Bargamin

• Decision Date: 15 November 1923
• Citation: 120 S.E. 287
• Court: Virginia Supreme Court
• Parties: WESSEL et al. v. BARGAMIN et al.

120 S.E. 287

WESSEL et al.

v.BARGAMIN et al.

Supreme Court of Appeals of Virginia.

Nov. 15, 1923.

Error to Circuit Court, Albemarle County.

Action by notice of motion by Pedro M. Wessel and others, partners trading as Wessel, Duval & Co., against Russell Bargamin and another, partners trading as the Crozet Cooperage Company. Judgment for plaintiffs was reversed, execution quashed, and case dismissed, and plaintiffs bring error. Reversed and remanded for further proceedings.

This is an action instituted by the following notice of motion for judgment, together with the account and affidavit attached to the notice:

"To Russell Bargamin and E. M. Bargamin, Trading as the Crozet Cooperage Company:

"You are hereby notified that on the 6th day of February, 1922, we shall move the circuit court of the county of Albemarle for a judgment against you for the sum of one thousand five hundred and forty-five dollars and twenty-six cents ($1,545.26), with interest thereon from the 31st day of March, 1921, until paid, the same being due to us from you, as evidenced by a certain account, a copy of which is hereto attached for the sum of one thousand five hundred and forty-five dollars and twenty-six cents ($1,545.26).

"Given under our hands this 1st day of January, 1922. Pedro M. Wessel, Harry L. Wessel, Theodosio F. Budge, Guillermo E. Purcel, Thomas Peake, Edmundo Eastman, Anson Mc Leod, Elizabeth Parker, George L. Duval, Robert Jaffray, Paul W. Alexander, trading as Wessel, Duval & Co., by Counsel.

"Gilmer & Graves, p. q.

The Crozet Cooperage Co., Crozet, Va., To Wessel, Duval & Co., Dr.

1921.

To difference between contract price and average price of our spot sales during March, 1921. on 135 long tons nitrate of soda covered by contract No. 3265, dated Nov. 20, 1920.

Contract price, $3.10 per 100 lbs.

March price, $2.5854 per 100 lbs.

Difference, $0.5154 per 100 lbs. 302, 400 lbs. gross—300, 283 lbs. net at $0.5146

per 100 lbs....................................$1,545 26

E. & O. E.

"Southern District of New York, County and State of New York—ss.:

"Paul W. Alexander, being duly sworn, deposes and says: He is a member of the firm of Wessel, Duval & Co., a copartnership doing business at No. 25 Broad street, New York City.

"That the Crozet Cooperage Co. was and is justly indebted to deponent's firm of Wessel. Duval & Co., in the sum of $1,545.26 as shown by the annexed statement and made a part hereof, and that the same became due on or about the 31st day of March, 1921; that no part of said debt has been paid; that there are no just offsets, set-offs, or counterclaims to the same; that demand for the same has been duly made and declined; that interest from the 33 st day of March, 1921, is claimed and demanded.

"That this affidavit is made by deponent as a partner of said firm of Wessel, Duval & Co. for and on behalf of said firm.

"Paul W. Alexander.

"Sworn to before me this 16th day of December, 1921.

"Michael C. Boyce, Notary Public."

The notice, together with the account and affidavit, was returned to the clerk's office by the officer on January 18, 1922, with his return thereon as follows:

"Executed on the 16th day of Jan., 1922, within the county of Albemarle, by delivering true copies of the within notice and copies of acct. to Russell Bargamin and E. M. Bargamin in person."

On February 6, 1922, the court below entered judgment by default by the following order:

"This day came the plaintiffs in the above styled action, by counsel, and moved the court for judgment against the defendants, Russell Bargamin and E. M. Bargamin, partners trading as Crozet Cooperage Company, upon a notice of motion for judgment duly executed upon said defendants and returned to the clerk's office of this court within the time required by law. And the court having examined said notice and the return of the officer thereon and finding that the said defendants had legal notice of this motion and that the same had been duly returned, as aforesaid, and is now docketed, the said defendants were solemnly called, but came not.

"Wherefore the court, after having examined the evidence herein, consisting of an itemized, verified statement of account, finds for the said plaintiffs in the sum of $1,545.26, the debt demanded, with interest thereon at 6 per cent. as claimed, and the costs; leave however, being granted said defendants at any time prior to the adjournment of this term to appear and interpose such pleas and matters of defense as they may desire; otherwise this judgment to become final at the rising of this court. It is therefore considered by the court and so ordered that the plaintiffs, Pedro M. Wessel, Harry L. Wessel, Theodosio F. Budge, Guillermo E. Purcel, Thomas Peake, Edmundo Eastman, Anson McLeod, Elizabeth Parker, George L. Duval, Robert Jaffray, Paul W. Alexander, trading as Wessel, Duval & Co., recover and have judgment against the said Russell Bargamin and E. M. Bargamin, trading as Crozet Cooperage Company, for the said sum of one thousand, five hundred and forty-five dollars and twenty-six cents ($1,545.26), with interest thereon at the rate of 6 per cent. per annum, from March 31st, 1921, until paid, together with their costs by them herein expended."

There was no appearance by the defendants during the February term, and the aforesaid judgment by default became final upon the rising of the court on February 18th, the last day of that term, as aforesaid, and on April 6, 1922, execution issued thereon.

Thereafter, at the April term, 1922, the defendants appeared and moved the court to vacate, set aside, and reverse the aforesaid judgment entered at the February term and to quash the aforesaid execution issued thereon as aforesaid on a number of grounds, only two of which need be stated, which are as follows:

(1) That the notice of motion was insufficient to support the judgment, in that it did not "state a case."

(2) That the judgment was entered without any proceeding in the nature of the execution of a writ of inquiry and without there being enough in the papers of the case to support the judgment for the specific amount for which it was entered.

The court, after certain proceedings not necessary to be stated, on May 6, 1922, which Was during the April term, entered an order reversing the aforesaid judgment and quashing the aforesaid execution, but giving leave to the plaintiff to amend the notice of motion. Subsequently, at the June term (June 14, 1922), the plaintiff having elected not to amend the notice of motion, and so stating to the court, the court entered the final order under review dismissing the case.

Baird, White & Lanning, of Norfolk, and Gilmer & Graves, of Charlottesville, for plaintiffs in error.

L. F. Smith and Allen & Walsh, all of Charlottesville, for defendants in error.

SIMS, J., after making the foregoing statement, delivered the following opinion of the court:

The questions presented for decision by the assignments of error will be disposed of in their order as stated below.

1. Was the notice of motion (together with the account which is made a part thereof), sufficient to maintain the action? That is, did it "state a case"—1. e., a cause of action—upon which the plaintiff was entitled to recover a judgment for some amount against the defendants?

The question must be answered in the affirmative.

The decisions in this jurisdiction upon the subject of what a notice of motion must state in order to be sufficient to maintain the action are numerous. Their holding, however, without reviewing them in detail, may be summarized as follows: It is settled by such decisions that the notice must state facts which, if true, entitle the plaintiff to recover upon such facts a judgment for some amount against the defendant. But the notice need not state the facts in detail. They are matters of proof. It is sufficient if the notice is such that the defendant cannot reasonably mistake its object; i. e., the cause of action intended to be stated therein. If the defendant desires more specific information of the details of the plaintiff's claim than is contained in such a notice, his remedy is to move the court to order the plaintiff to file a statement of the particulars of his claim. Graves v. Webb, 1 Call (5 Va.) 443; Moore v. Mauro, 4 Rand. (25 Va.) 488; Burwell v. Burgess, 32 Grat. (73 Va.) 472; Carr v. Meade's Ex'x, 77 Va. 142; Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 26 S. E. 421, 36 L. R. A. 271, 64 Am. St Rep. 715; Security Co. v. Field, 110 Va. 827, 67 S. E. 342; Rinehart v. Pirkey, 126 Va. 346, 101 S. E. 353; Matthews v. La Prade, 130 Va. 408, 107 S. E. 795; Bardach Iron & Steel Co. v. Tenenbaum, 136 Va. —, 118 S. E. 502, — to cite only such of the decisions as are cited for the plaintiffs and defendants in argument upon the question under consideration.

The notice in itself in the instant case is insufficient, but the notice makes the account a part of it, and when they are read together they notify the defendants that the cause of action alleged is the breach by the defendants of the...