Volume 135 — Virginia Reports

<p>Error to a judgment of the Circuit Court of the city of Norfolk, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.</p> <p>This action was begun by the following notice of motion for judgment:</p> <p>“To The American Exchange Bank of Norfolk, Virginia:</p> <p>“Take notice that on Wednesday, March 23, 1921, at ten o’clock A. M., or as soon thereafter as counsel may be heard; the undersigned will move the Circuit Court of the city of Norfolk, Virginia, at the courthouse thereof, for a judgment against you for the sum of $750.00, with interest thereon from the 31st day of December, 1920, until paid, for this, to-wit:</p> <p>“That on the 18th day of October, 1920, the undersigned held a lease as lessor with one G. M. Smith, lessee, on property located at 780 Granby street, in the city of Norfolk, Virginia, which said lease bears date on the 10th day of November, 1919, for a period of one year from January 1, 1920; that on the 18th day of October, 1920, prior thereto or since, youdidremove, or cause to be removed, from the said leased premises, certain automobile trucks more specifically described as Winther Motor Trucks and automobile parts, not leaving sufficient property on the lot, which constituted the stock in trade of the said C. M. Smith at the time, and placed, or caused to be placed, said truck and parts in warehouses in the city of Norfolk, Virginia, and took thereon warehouse receipts and attached the same to a collateral note or notes executed by the said C. M. Smith, in order to secure to you the payment of certain indebtedness owed to you by the said Smith, and this you did without complying with the provisions of section 5524 of the 1919 Code of Virginia. The said $750.00 is the amount of rent due and unpaid under the said lease for the months of October, November and December, 1920, the said amount not being more altogether than a year’s rent as provided for in the above aforesaid section of the 1919 Code of Virginia.</p> <p>“Goodlee Realty Corporation, “By R. C. Cole, Counsel.”</p> <p>The defendant in error, the plaintiff in the court below, will be hereinafter referred to as the plaintiff landlord or landlord; the plaintiff in error as the defendant lienholder or defendant; and C. M. Smith,, the lessee, as the lessee.</p> <p>There was a trial by jury which resulted in a verdict for the plaintiff landlord against the defendant-lien-holder for the sum of $750.00 and the judgment under review was entered accordingly.</p> <p>The material facts, as shown by the evidence, without conflict for the most part and, in those instances where there was conflict in the testimony, by sufficient evidence to support the finding of the jury, are as follows:</p> <p>The lessee conducted an automobile truck repair and retail sales business in the city of Norfolk, Va., in premises rented by the lessee of the plaintiff landlord under a lease for a period of one year which began on January 1st and expired on December 31, 1920, the rent being due and payable in equal monthly installments of $250.00 on the last day of each month. On October 1 or 2, 1920, the plaintiff landlord placed in the hands of an officer a distress warrant against the lessee for the unpaid rent for the months of July, August and September, 1920, which was levied on October 2, 1920, upon two' certain trucks and automobile repair parts then on the said premises and belonging to the lessee.</p> <p>There is some mention made in the testimony for the defendant lienholder of its having lent the lessee some money prior to the beginning of said tenancy upon the security of a bill of sale of one of these trucks given by the lessee in 1919 before this truck was taken to the said premises, but as the possession of this truck was not taken and held by the defendant lienholder, such possession being retained by the lessee, so that such truck came upon the premises during the tenancy unencumbered, so far as the evidence discloses, by any lien having preference over the landlord’s common law or statutory rights, this circumstance may be disregarded as immaterial.</p> <p>The lessee arranged with the defendant lienholder to pay off the lien of the distress warrant and also enough additional money to satisfy $700.00 overdraft owing by lessee to such lienholder, upon the security of the trucks and automobile parts which the distress warrant had been levied upon as aforesaid. Accordingly, on October 5, 1920, the defendant lienholder lent the lessee $1,480.00, took his note therefor, secured by a bill of sale of one of the said trucks and- of said automobile parts, executed that day, and thereafter, on the same day, removed both of said trucks and said automobile parts from the said premises, and- on the same day stored the two trucks with a storage company, taking its negotiable receipts therefor, by which the storage company agreed to deliver the same to the order of the defendant lienholder, or bearer, upon surrender of the receipts, respectively, on payment of certain stipulated charges, and on October 18, 1920, stored the automobile parts with the same storage company taking a like receipt therefor, containing the same agreement; and the defendant lien creditor on October 5, 1920, prior to removing the property from said premises, paid the officer $780.00, the amount of the distress, warrant, being all of the rent in arrear then due the-plaintiff landlord, together with interest and costs;, entered on its books the satisfaction of said $700.00 overdraft indebtedness of the lessee; and, thereafter,, held the said bill of sale of that date, of the aforesaid, truck covered thereby and the said 1919 bill of sale covering the other truck, as aforesaid, and the storage-company receipts, after obtaining them, all as - collateral security for said loan of $1,480.00 to the lessee; and still held such collateral security at the time the-instant action was instituted, which was on March 8, 1921, the trucks and automobile parts having remained in storage with said storage company until the action was instituted; and, indeed, the trucks remained in such storage until May 4, 1921, which was after the. verdict (which was returned on April 21, 1921), and but a short time before the judgment under review was-entered (which was on May 17, 1921). On May 4, 1921, the defendant lienholder assigned the storage-company receipts for said trucks to a third party. It. does not appear from the record whether the storage company receipt for the automobile parts has ever been assigned, or that the parts have ever been removed from said storage.</p> <p>The evidence, without conflict, shows that the value of the property removed from the premises as aforesaid exceeded the $750.00, the amount of the one year’s-rent which thereafter became due, for the recovery of which the action was brought, and that the same was-not secured to the plaintiff landlord by the defendantlienholder before the property was so removed, and that this rent still remained wholly unpaid at the time, the judgment under review was entered.</p> <p>There was other evidence concerning the issuance and levy of a distress warrant on December 6, 1920, on certain property in tbe possession of tbe lessee on said premises for the rent for October and November, 1920, which proved to be wholly unavailing because the lessee during the month of December was adjudged a bankrupt and most of the property thus levied upon was found not to belong to the lessee, so that the amount realized by the trustee and turned over to the referee in bankruptcy was only a trifling sum, which was consumed in costs in the bankruptcy proceedings, leaving nothing for the landlord or for any of the creditors of the lessee; and this and other evidence tended to show that at the time of said removal of said property from the premises on October 5th, sufficient property liable for the rent was not left on the premises to satisfy the aforesaid balance of the year’s rent which was not then in arrear but was to and did thereafter become due. But, as this evidence is all immaterial in view of the conclusion reached in the opinion, no detailed statement of it is here made.</p> <p>The material assignments of error are as follows:</p> <p>That the trial court erred—</p> <p>In granting, at the request of the plaintiff, the following instruction:</p> <p>“The court instructs the jury that if you believe from the evidence that the defendant removed, or caused to be removed, property of the tenant from the leased premises for the purpose of acquiring a lien thereon, for sale, or otherwise, and did acquire such lien thereon, or did dispose of said property by sale, or otherwise, after said property had been placed on the premises, not leaving sufficient property on said premises to satisfy the balance due for a year’s rent, and without securing to the plaintiff, who was the landlord, such balance due for the year’s rent, you shall And for the plaintiff and assess its damages at such an amount as you may believe to be due, not to exceed seven hundred and fifty ($750.00) dollars.”</p> <p>In refusing to grant the following instructions asked for by the defendant lienholder:</p> <p>“The court instructs the jury that if the landlord failed to perfect a lien by legal proceedings for the rent due or to become due for a period not exceeding one year while the goods were on the premises or within thirty days after they were removed therefrom, and the defendant obtained a lien upon the goods which has existed for more than thirty days after the goods were removed from the premises, then they shall find for the defendant.”</p> <p>“The inability of the landlord to locate the goods removed from the premises within thirty days after removal, does not relieve the landlord from the necessity of making a levy or distress within that time.” And,</p> <p>In refusing to set aside the verdict as being contrary to the law and evidence.</p>

<p>Appeal from a decree of the Chancery Court of the city of Richmond. Decree for complainant. Defendant appeals.</p> <p>This is a suit in chancery instituted by the appellee, Mrs. Sue Rose Atkins, against the appellant, the American Stores Corporation, a corporation, and its president, to enforce the lien of a certain writing, which was signed on the part of the appellant corporation by its president and secretary and treasurer, and had the corporate seal of the corporation affixed thereto, and which was by its terms in effect a chattel mortgage conveying certain personalty belonging to the corporation to secure the payment of a certain note of the same dated December 23, 1918, for the sum of $1,500.00, payable sixty days after date to the appellee, Mrs. Atkins, or her order signed on the part of the corporation, as maker, by the same two officers, its president and secretary and treasurer, who signed the chattel mortgage and note as aforesaid; which note was given, as alleged, for $1,500.00, money loaned by the appellee to the appellant corporation; and to obtain a personal decree against the appellee corporation for any deficiency should there not be realized from the sale of the aforesaid personalty a sufficient amount to satisfy the said note.</p> <p>The appellant corporation, by its original and amended and supplemental answer, made, in substance, only three defenses, viz. :</p> <p>1. That $1,425.00 of the $1,500.00 for which said note was given by the appellant, although represented to the latter at the time of the execution and delivery of the note as being the money of the appellee, Mrs. Atkins, was in truth, as the appellant afterwards discovered, the money of the appellant, derived from a certain bank of • Victoria certificate of deposit of $1,425.00 payable to the order of John H. Atkins, the husband of appellee, which $1,425.00 was the net proceeds of the sale of 150 shares of treasury stock of the appellant corporation to one Fowlkes, by said husband of appellee, as agent of the corporation, and that these facts were known to the appellee, Mrs. Atkins, at the time of the execution and the delivery to her of said note.</p> <p>2. The defense set up by the following allegations contained in the said amended and supplemental answer, namely:</p> <p>“On December 23, 1919, the said Atkins, by reason of his transactions as salesman of the stock of respondent, was indebted to respondent in a large sum, to-wit, the sum of $.................— in addition to the sum of $1,500.00, the proceeds of the sale of the aforesaid 150 shares of respondent’s stock to said Fowlkes.</p> <p>“The said Atkins was then, and had for a long time prior thereto ■ been, wholly insolvent, and whatever property he had had been placed in the name of the complainant, Sue Rose Atkins, his wife.</p> <p>“Contriving to hinder, delay and defraud this respondent in the collection of its indebtedness, he placed in her possession the certificate of deposit aforesaid, she then and there well knowing that the said John H. Atkins was the sales agent of respondent and that the same represented the proceeds of the sale of certain shares of the capital stock of respondent sold by John H. *A,tkins as its agent. And when the said John H. Atkins procured from the said A. B. Dickinson the note in the bill mentioned under pretext of a loan of $1,500.00 to the respondent, and delivered it, as it is claimed, to the complainant, his wife, and procured from her the said certificate of deposit in return therefor, the whole was done with the intent to hinder, delay and defraud respondent in the premises, and to secure to the complainant, his wife, the payment out of the assets of respondent of the sum of $1,500.00 without any consideration whatever.” And,</p> <p>3. That the appellant, while admitting the aforesaid execution of the chattel mortgage on the part of the appellant corporation by its aforesaid officers and the aforesaid purpose of it, yet, as set forth in said amended and supplemental answer, “does not admit that said paper was executed pursuant to any lawful authority then vested in said officers; on the contrary, respondent expressly denies that the officers aforesaid of respondent acted with due authority in the premises, and this respondent is. advised, avers and charges that said instrument is not valid and is not binding upon it either at law or in equity.”</p> <p>The case was heard by the court below upon the aforesaid pleading and the depositions of witnesses filed in behalf of appellant and appellee and a number of exhibits filed in evidence.</p> <p>The decision of the court below, as appears from the opinion of the learned and painstaking judge of that court, which is made a part of the decree under review, was as follows:</p> <p>“I am of opinion:</p> <p>“1. That the certificate of deposit for $1,425.00, issued by the bank of Victoria to J. H. Atkins, was for one hundred and fifty shares of stock belonging to J. H. Atkins and by him sold to J. W. Fowlkes and that, therefore, the certificate was, when issued, the property of J. H. Atkins.</p> <p>“2. That thereafter J. H. Atkins indorsed and transferred this certificate of deposit to Sue Rose Atkins for money due her by J. H. Atkins.</p> <p>“3. That Sue Rose Atkins with this certificate and seventy-five dollars in cash, loaned the American Stores (Inc.) fifteen hundred dollars, for which loan the note in suit was given.</p> <p>“4. That no part of this note has been paid and, therefore, the complainant, Sue Rose Atkins, is entitled to the relief sued for in her bill.”</p> <p>The decree under review was entered accordingly, directing the sale of the property, unless the appellant, within ten days from the entry of the decree, pay to the appellee the said sum of $1,500.00 with interest from February 21, 1919, and her costs, etc., and that the proceeds of such sale be deposited to the credit of the court in this cause.</p>

<p>Error to a judgment of tlie Hustings Court of the city of Petersburg, in a proceeding by motion for a judgment for money. Judgment for defendant. Plaintiff assigns error.</p>

<p>Error to a judgment of the Hustings Court of the city of Petersburg, in an action of assumpsit. Judgment for plaintiff. Defendants assign error.</p>

<p>Error to a judgment of the Circuit Court of the city of Norfolk, in an action of trespass on the case. Judgment for plain tiff. Defendant assigns error.</p> <p>This is an action of trespass on the case instituted by the defendant in error, Max Levin (who will be hereinafter called plaintiff), against all of the plaintiffs in error' (who will hereinafter be called defendants or referred to by their individual names), to recover damages, for the alleged wrongful and wilful misconduct of the defendants in taking and carrying away, in satisfaction of certain debts owing to the defendants, the fixtures, and the more valuable part of a certain stock of goods belonging to the plaintiff, of the aggregate value of $3,000.00 {%. e., the fixtures and the part of the stock of goods so taken being of the aggregate value of $3,000.00,. as alleged in the declaration), from the place of business of the plaintiff, without his consent, whereby, as is alleged in the declaration, the plaintiff “was caused the embarrassment and loss of his credit and good standing and has lost his entire business * * to the damage of the said plaintiff of * * $12,500.00 * * .”' The verdict of the jury was as follows: “We the jury find for the plaintiff and fix the damages at four thousand dollars ($4,000.00).”</p> <p>The defendants moved to set aside the verdict. The motion was overruled and the judgment under review was entered by the trial court against all of the defendants in accordance with the verdict.</p>

<p>Error to a judgment of the Circuit Court of Brunswick county, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the. Circuit Court of the city of Norfolk, in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.</p>

<p>Error to a judgment of the Circuit Court of the city ■of Norfolk, in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Smyth county. Decree for complainant. Defendant appeals.</p>

<p>Error to a judgment of the Corporation Court of the-city of Lynchburg, in an action of assumpsit. Judgment for plaintiffs. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of the city of Norfolk, in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Chancery Court of the •city of Richmond, in a suit to procure the construction of '■a will. From an adverse decree, the complainant appeals.-</p>