Gray v. Kemp

Citations

• 88 Va. 201
• 16 S.E. 225
• 1891 Va. LEXIS 17

Syllabus

<p>1. Practice of Common Law — Declaration—Demurrer.—The familiar rule is that in case of a general demurrer, where any one count is good, the demurrer is overruled.</p> <p>2. Idem — Misjoinder of counts — Case, at bar. — Here there are three counts, the last two being in .assumpsit. The mere fact that the first count says, “ The. plaintiffs complain of the defendant of a plea of trespass on the case,”.instead of “trespass on the case in assumpsit,” cannot change the form of the action nor aft'ect the result upon demurrer.</p> <p>:■!. Idem — Misjoinder of issue — Repleader—Case at bar. — Where to such declaration in assumpsit a plea of “ not guilty ” is filed, issue joined thereon, a fair trial had on all the facts, and verdict and judgment for plaintiff, a repleader will not be awarded.</p> <p>4. Sai.e of Stock — Measure of damages for non-delivery. — Where at agreed price, which was paid, defendant sold plaintiffs certain stock and gave them an order for its transfer. The company denied that he owned the stock. Defendant then offered to refund, hut plaintiffs refused to accept the money, and without any reasonable delay, sued for damages for breach of contract;</p> <p>Held :</p> <p>Plaintiffs were entitled to recover the value of the stock, or its highest. price in market at any time after demand and refusal.</p>