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Extract from a case decided by the Supreme Court of Virginia, Lewis v. Arnold, 54 Va. 454, 13 Gratt. 454 (1856). Surnames: Arnold, Early, Howery, Lewis, Neville



SYLLABUS: 

This was an action in the Circuit court of Kanawha county instituted in
April 1848, by Enos S. Arnold against John D. Lewis. The declaration
contained five counts, four of which were in case, and the fifth in trover;
and the damages were laid at $ 800. The defendant appeared and demurred to
the declaration and each count thereof, and also pleaded "not guilty:" And
the court sustained the demurrer to the second count, but overruled it as to
the others. 

The object of the suit was to recover the value of a parcel of salt which
the plaintiff claimed to have purchased of George Neville, and of which
possession was taken by Lewis. On the trial the plaintiff introduced in
evidence a lease from Lewis to Scott & Neville, bearing date on the 24th of
July 1844, by which he leased to them a salt property on the Kanawha river,
for six years from its date, reserving an annual rent of seven thousand five
hundred bushels of salt, payable quarterly. He also introduced a deed
bearing date the 17th of July 1846, by which Scott, with the assent of
Lewis, assigned his interest in the lease to Neville, who undertook to pay
the rent reserved to Lewis, and also to pay Scott two thousand barrels of
salt in certain payments of five hundred barrels each, and also to pay the
debts of the partnership due in Virginia. He also introduced an agreement
under seal, bearing date the 22nd of July 1846, between Neville and himself,
by which Neville contracted to sell to him all the salt Neville then had on
hand at his furnace, supposed to be about eight hundred barrels, and all the
salt he should make at said furnace until the first day of the next January;
except that after Neville has delivered the eight hundred barrels of salt to
Arnold, he may in the next place deliver the five hundred barrels then due
to Scott, after which he was to deliver to Arnold all the salt made at his
furnace up to the first of January 1847, (except what may become due to
Lewis for rent,) the said salt to be of first quality, well packed in
merchantable barrels, weighed, inspected according to law, and delivered at
the salt yard of said Neville. And Arnold was to pay twelve and a half cents
per bushel for the salt, and settlements were to be made on the 1st of
November and the 1st of January, when he was to give his notes at ninety
days for the amount found due on these settlements. 

The plaintiff also introduced as a witness James Howery, a flat boat
steersman, who stated that early in December 1846 he was employed by the
plaintiff to take plaintiff's flat boat to Neville's furnace, and there load
it with salt and take it to market for the plaintiff. That in loading said
boat for plaintiff he was engaged three days, and finished it on the evening
of the third day. That after he had finished loading the salt and was
preparing his oars to start down the river with it, Lewis came to the
landing and forbade him to take the salt away, saying he had a landlord's
warrant, or would get one, to take the salt for rent. That soon afterwards
Robert H. Early, a deputy sheriff for Kanawha county, came also to said
landing and forbade him from removing said salt so loaded as aforesaid,
stating that he had a landlord's warrant or notice, or something of that
kind. That at this time as well as when Lewis was there, the witness was on
said boat preparing his oars to start as aforesaid, and in consequence of
what was said by the sheriff witness left the boat; and it was then taken
possession of by some hands employed by the defendant for the purpose, taken
away, and accidentally sunk by them. Witness also stated that Arnold had
paid him for his services in loading the boat. The plaintiff also introduced
evidence as to the value of salt at the time. 

When the plaintiff had introduced his evidence the defendant demurred to it:
And the jury having found a verdict for the plaintiff for eight hundred and
thirty-three dollars and forty-nine cents damages, subject to the opinion of
the court on the demurrer to evidence, the court afterwards rendered a
judgment in his favor for that sum, with legal interest thereon from the
10th day of November 1852, the date of the verdict, until paid. Whereupon
Lewis applied to this court for a supersedeas, which was allowed. 

COUNSEL: 

Fry, for the appellant, insisted: 

1st. That the whole of the salt made by Neville was not sold to Arnold; but
that there was an express reservation of so much as was necessary to pay the
rent reserved to Lewis. And that upon the claim by Lewis of the salt loaded
on Arnold's boat it had been abandoned by the latter; and had not been
claimed for two years. That Arnold therefore could not recover for the salt
as his property. 

2d. That the damages claimed in the declaration being but eight hundred
dollars and the judgment having been rendered for eight hundred and
thirty-three dollars and forty-nine cents, this was error. 

3d. That it was error to render a judgment for interest. That the action
having been brought and pending when the act authorizing a judgment for
interest on a tort, that act did not apply to the case. That this was not a
clerical error. Bent v. Patten, 1 Rand. 25, Compton v. Cline, 5 Gratt.
137-70, show that it was error to give a judgment for interest on damages.
He referred to Brugh v. Shanks, 5 Leigh 598; Gibson v. Governor for, &c., 11
Leigh 600; Commonwealth v. Winstons, 5 Rand. 546, 562. That this being a
pending suit, it is excepted out of the act, Code, ch. 216,  1, 2, p. 800,
by the operation of the act, ch. 16,  18, p. 101; and should be excepted
out of the act, ch. 177,  14, p. 673. He referred to The Commonwealth v.
Hewitt, 2 Hen. & Munf. 181; Elliott v. Lyell, 3 Call 268, marg. and
especially to the opinion of Roane, J., and the cases he there cites; Couch
v. Jeffries, 4 Burr. R. 2460. And he insisted that neither this or the error
in rendering a judgment for more than the damages laid in the declaration,
could be corrected under the act, Code, ch. 171,  5, p. 681. That this act
was in substance the same as the act of 1819, 1 Rev. Code, ch. 128,  108,
109, p. 512, 513; and that the cases before cited show that these errors
could not be corrected under the act of 1819. As to the case of Hepburn v.
Dundas, supra 219, the point was not made, nor was the bearing of the
different provisions in the Code considered. 

McComas and B. H. Smith, for the appellee, insisted: 

1st. That on a demurrer to evidence the proof was certainly sufficient to
prove a delivery of possession of the salt by Neville to Arnold; and that
there was no intention to abandon the possession of, or the right to, the
salt. The boatman supposing that the sheriff had authority to take
possession of it, went off the boat to inform his employer of what was
doing; but certainly he never intended to give up the boat on which Lewis
had no claim of any kind. 

2d. That the act, Code, ch. 177,  14, p. 673, directs that in all cases
thereafter, in which a verdict is rendered not allowing interest, the sum
thereby found shall bear interest, and the judgment shall be accordingly.
And they referred to the case of Hepburn v. Dundas, supra 219. 

3d. That as to the excess of the judgment over the amount of the damages
laid in the declaration, the judgment might be corrected in that respect and
affirmed. Code, ch. 171,  5, 6, p. 681. 

JUDGES: DANIEL, J. The other judges concurred in the opinion of Daniel, J.
(Absent, Lee, J.) 

OPINION: The full delivery of the salt in controversy by Neville or his
agents, to Howery, the person authorized by Arnold to receive it, is clearly
established by the testimony of Howery. Possession of the salt was acquired,
and its removal from the demised premises into the boat of Arnold, effected
in an open and public manner; Howery, according to his statement, having
been engaged three days in loading the boat with it. The inference is
irresistible that it was delivered by Neville, in pursuance of the written
agreement between him and Arnold of the 22nd of July 1846. [*459] This
agreement was thus completely executed, so far as the salt in question was
concerned, and nothing remained to be done in order to perfect the transfer
of full ownership in it. 

It is true that in this agreement there is full recognition by Arnold of the
relation of landlord and tenant subsisting between Lewis and Neville, and an
express exception out of the contract by the latter to deliver Arnold all
the salt he should make during the year, of so much as might become due to
Lewis on account of his rent. And if, therefore, such a transaction as that
which occurred between Lewis and Howery, had occurred between Lewis and
Arnold, and the conduct of the latter had been in all regards the same with
that of Howery, I am not prepared to say that there would not have been much
show of force in the position taken by the counsel of Lewis here. In such a
supposed state of things the inference would have been strong, that Arnold,
whatever might be his strict legal rights in the controversy, had acquiesced
in the claim of Lewis; and in such a case there might have been an apparent
injustice in allowing him afterwards to visit Lewis with a loss that might
not have occurred but for his seeming acquiescence. But I can see no ground
for holding that Arnold is to be held bound by the conduct of Howery. The
agency of the latter was of the most special and limited character. He was
the mere servant or hireling of Arnold, charged with the simple duty of
receiving the salt, loading the boat with it and carrying it down the river
to market for Arnold. He was clothed with no powers which could make his
admissions, express or implied, of the justice of Lewis' claim, binding on
Arnold. If, therefore, from his statement that he left the boat in
consequence of what was said by the sheriff as he was on the eve of starting
with his boat, it is to be inferred that he believed in the statements made
by Lewis and the sheriff, and acknowledged their right to take the salt for
rent, it is difficult to perceive by what rule of law it is to be maintained
that such inference can be brought to bear on the rights of Arnold. 

Let it be that Howery had full faith in the declaration of Lewis, that "he
had a landlord's warrant or would get one to take the salt for rent," and in
the announcement made by the sheriff on his arrival soon thereafter, that
"he had a landlord's warrant, or notice, or something of the kind;" and that
in leaving the boat he designed a surrender of his charge to the challenge
of what he supposed to be a rightful claim and a lawful authority, still it
is obvious that such conduct cannot stand in a controversy between Lewis and
Arnold, as the substitute for proof, by Lewis, of the justice of his claim,
nor dispense with the exhibition by him of the process by means of which he
threatened to enforce it. 

There is nothing in the exception or proviso to the agreement between Arnold
and Neville, from which to infer a duty on the part of the former to see, on
every occasion of receiving salt from the furnace, that a sufficiency of
salt was left to discharge the rent to be paid by Neville. The whole effect
of the reservation was to give Neville the right to retain, out of the whole
quantity made during the year, a sufficiency for that purpose. There is no
proof of any specific amount of rent due to Lewis; no proof that he or the
sheriff was armed with any legal authority to make a levy on the salt; no
proof that the salt in controversy had been set apart by Neville for the
purpose of satisfying the rent, nor that a sufficiency to pay the rent was
not left on the leased premises; no proof of collusion between Neville and
Arnold in fraud of the rights of Lewis. But we are called on to infer all
that is essential to show a superior right in Lewis, from the exhibition of
the lease between him and his tenant, the agreement between Arnold and
Neville showing that the former had notice of the terms of the lease, and
from the fact that Lewis took possession of the salt with the assertion of a
lawful right to take it to satisfy his demands as landlord. We should have
to reverse all the rules applicable to demurrers to evidence before we could
allow a defense constructed out of such elements alone, to stand in the way
of the plaintiff's recovery. The Circuit court therefore did not err, as it
seems to me, in rendering a judgment on the verdict for the plaintiff. It is
contended, however, that the judgment was wrong in allowing interest on the
damages, conditionally assessed by the jury, from the date of the verdict. 

By the 14th section of chapter 177 of the Code of 1849, p. 673, it is
declared that the jury in any action founded on contract may allow interest
on the principal due, or any part thereof, and fix the period at which such
interest is to commence. And in any action for a cause arising thereafter,
whether from contract or from tort, the jury may allow interest on the sum
found by the verdict, or any part thereof, and fix the period at which the
said interest shall commence. And if a verdict be rendered thereafter, which
does not allow interest, the sum thereby found shall bear interest from its
date, whether the cause of action arose theretofore or shall arise
thereafter; and judgment shall be entered accordingly. 

It is conceded by the counsel of the plaintiff in error, that the terms of
the last clause of this section are sufficiently broad to cover the case;
and he also concedes that the judgment is, in the particular in question, in
conformity with the judgment rendered by this court in the case of Hepburn
v. Dundas, 54 Va. 219. He contends, however, that the terms of said clause,
if sought to be applied to verdicts rendered in actions pending at the date
of the act, must be controlled by the provisions of the 18th section of
chapter 16, p. 101, and the first and second sections of chapter 216, p.
800, the last chapter of the Code. He calls attention to the fact that in
the petition for the appeal in the case just mentioned, no such question is
presented, and also to the further fact that in the written opinion of the
court no reference is made to these provisions; and he insists that under
such circumstances the question should not be regarded as concluded by the
decision made in that case. 

The provisions of the section to which the counsel first refers us are, that
no new law shall be construed to repeal a former law as to any offence
committed against the former law, nor as to any acts done, any penalty,
forfeiture or punishment incurred, or any right accrued, or claim arising
under the former law, or in any way whatever to affect any such offence or
act so committed or done, or any penalty, forfeiture or punishment so
incurred, or any right accrued or claim arising before the new law takes
effect; save only that the proceedings thereafter had shall conform, so far
as practicable, to the law in force at the time of such proceedings. And by
the first and second sections of the last chapter of the Code it is
declared, that all the provisions of the preceding chapter shall be in force
upon and after the first day of July next (after the passage of the act);
and that all acts and parts of acts of a general nature in force at the time
of the passage of the act, shall be repealed from and after the said first
day of July next, with such limitations and exceptions as are already in the
previous provisions of the Code, or in the said chapter thereafter
expressed; and that such repeal is not to affect any offence or act
committed or done or any penalty or forfeiture incurred, or any right
established, accrued or accruing before the said first day of July, on any
prosecution, suit or proceeding pending on that day, except that the
proceedings thereafter had shall conform, so far as practicable, to the
provisions of the act. 

There is no conceivable reason why the legislature should have made any
distinction in the particular under consideration, as affecting the parties
thereto, between actions pending and actions thereafter to be brought on
causes of action already existing; inasmuch as it is obvious that this new
incident to, or consequence of, the verdict could be as effectually avoided
by a defendant in the one case as in the other. The true point of objection
(if any) to the clause in question is, that it attaches to a cause of action
already existing, a consequence which under the former law did not belong to
it, the defendant not being compellable by any former law in case of a
verdict for damages assessed in actions for tort, to pay interest thereon
from the date of the verdict. But I do not think that in this respect the
clause stands in any respect opposed to the spirit of these general
regulations. 

No one who has inflicted injury by the commission of a tort can be properly
said to have an established right to withhold for any space of time the
measure of reparation ascertained by the verdict of a jury to be due to the
injured party. The justice of requiring the prompt payment of the sum which
may be assessed by a jury in such case, and of allowing the party injured to
receive, and of compelling the party withholding to pay, a fair compensation
for retaining it, is just as clear as it is to make a similar requisition of
one who is found to be the debtor of another by contract. And when it is
entirely within the power of the wrongdoer wholly to avoid the new
consequence which the clause in question attaches to the verdict, (as it is,
by the prompt discharge of the damages,) I cannot see how the law can be
said to be objectionable as being of a retrospective character. 

It is to be observed further that the act existing at the date of the Code
in respect to the allowance of interest by the jury, embraced only actions
founded on contracts, and directed that the jury should, after ascertaining
the principal sum due, fix the period at which interest should commence, if
interest should be allowed by them; and that judgment should be rendered
accordingly, carrying on the interest till the judgment should be satisfied.
This provision though repealed, by the general repeal of all acts then in
force, in the last chapter of the Code, is, as we have seen, in effect
substituted by the first clause of the 14th section of chapter 177. In
respect to actions founded on tort, there was, at the date of the passage of
the Code, no act of assembly either directing or forbidding the jury to
allow interest on the damages, or prescribing whether interest should or
should not go on the damages assessed by the jury in such cases, where the
verdicts did not allow interest. These matters were regulated by the common
law. In respect to them there was, therefore, no act of assembly to be
repealed: And consequently, the clause in question does not come within the
terms of the last chapter of the Code declaring the repeal of "all acts and
parts of acts" of a general nature. 

So far as the said clause declares a new rule in conflict with the common
law, it does so in terms definite and precise, leaving nothing for a general
rule of construction to operate upon. It ascertains clearly the right to the
interest as an incident to every verdict to be thereafter rendered, which
does not allow interest, whether the cause of action arose theretofore or
shall arise thereafter; makes no distinction between suits pending or
thereafter to be brought; fixes the date of the verdict as the period from
which the interest is to run, and declares that judgment shall be rendered
accordingly. It neither needs nor admits of a reference to any general
provision to explain or declare on what rights it was designed to operate,
or what suits it was designed to affect. It carries with it its own
construction. And to bring the general regulations in question, understood
as they are by the counsel of the plaintiff in error, to bear upon it, would
be to make the law contradict itself in some of its most important
provisions; provisions in which it has used language of the most positive
and unequivocal character. On the operation and effect of such a law it is
plain these general regulations can, from the very nature of the subject and
the objects contemplated, have no control. 

There is, however, a plain mistake or error in the verdict and judgment, to
the prejudice of the plaintiff in error, to the extent of thirty-three
dollars and forty-nine cents; the amount of damages claimed in the
declaration being eight hundred dollars, whilst the verdict and judgment
have been rendered for eight hundred and thirty-three dollars and forty-nine
cents. By the sixth section of chapter 181 of the Code of 1849, it is made
the duty of the Court of appeals in cases of this kind to amend the judgment
in such particular, and then to affirm the judgment, if there be no other
error. Under the former law,  110, ch. 128, Rev. Code, it was the duty of
this court in such case to reverse the judgment of the court below on
account of the error, and then to proceed to give such judgment as the court
below ought to have given. And here again the counsel for the plaintiff in
error insists that under the requirements of the general provisions of the
Code already commented on, we ought to conform our judgment to the
requirements of the former law. The want of any applicability of these
provisions, and the absence of all right in the plaintiff in error to ask
their application, is, if anything, more obvious in this enquiry than they
were in the one just disposed of. 

If the writ of error had been pending when the Code took effect, there would
be a show of propriety in contending that the plaintiff should not by the
new law be burdened with the costs of correcting an error which, as the law
stood when he sued out the writ, he had a right, an inchoate right, to have
corrected at the costs of his adversary. But his position is just the
reverse of that supposed. The writ of error, his (the plaintiff's in error)
own suit, has been instituted since the Code took effect. Not only so; but
the cause of action on which it is founded, viz: the error committed in the
verdict and judgment rendered in the Circuit court, did not arise till after
the new law came into operation. The new law does not sanction this error,
nor give to the plaintiff in the original action, which was pending when the
new law took effect, a right to recover of the plaintiff in error larger
damages than he had a right to recover by the former law. So far from it,
whilst it repeals (as is true) the former laws regulating the correction of
such errors, it at the same time substitutes in their place new provisions
equally efficacious; and in fact gives to the plaintiff in error an
additional means of obtaining relief, viz: by motion to the Circuit court.
By pursuing that remedy, instead of the one selected, he might have saved
himself as well as his adversary the expense and delay that have been
encountered in this court. Having refused to avail himself of the cheaper
remedy, he ought not to be heard to complain of the rule which requires him
to pay the expenses of the more costly one of which he has chosen to avail
himself. 

No precedent can be found going to the length of condemning, as
retrospective, laws which merely change the remedies for existing rights.
And it would be carrying the doctrine of the inviolability of vested rights
to an extent far beyond the real purpose of any constitutional provision,
and the true object and scope of the general regulations in question, to
hold that a party to a pending suit has such an established right to the
then existing remedy for the correction of errors, as that an error which
may be committed thereafter in the progress of the suit, cannot be made the
subject of a new law regulating the costs of the proceedings to correct the
error in the appellate court. 

It is not necessary to consider the questions which were raised in the
Circuit court by the demurrer to the first counts in the declaration,
inasmuch as the evidence obviously applies only to the case stated in the
last count, which, it is conceded, is in all respects good. 

There is, I think, no error in the judgment, except that which was committed
in rendering judgment for a sum exceeding that laid in the declaration. This
error ought to be corrected, and the judgment of the Circuit court then
affirmed. 

The other judges concurred in the opinion of Daniel, J. 

Judgment amended and affirmed, with costs and damages.Top of Form 1
Bottom of Form 1

Submitted by: Justin C.S. Howery at howery@qwest.net


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