Lee's Adm'r v. Hill

Citations

• 87 Va. 497
• 12 S.E. 1052
• 1891 Va. LEXIS 100

Syllabus

<p>1 Practice at Common Law—Survival of action—Rule.—Where cause of action is tort unconnected with contract, and affects the person only and not the estate, the action dies with the person; otherwise, where the action, though nominally ex delicto, is founded on contract.</p> <p>2. Idem—Wrongful discharge—Form, of action—Survival.—Where one was wrongfully discharged by decedent, trespass on the case may be maintained under Code, $2655, against the personal administrator, or assumpsit for breach of contract at common law. In either case the action survives. And when defendant dies pending the action, it may be revived against the personal representative.</p> <p>3. Cases Disapproved and Distinguished.—Henshaw v. Miller, 17 How., 2 2, distinguished from case at bar; Boyles v. Overby, 11 Graft., 202, disapproved.</p> <p>4. Statute or Frauds—Case at bar.—Where defendant, by parol, employed plaintiff in August for one year’s service, to commence in October: held, the contract is not enforceable, the statute of frauds being pleaded.</p> <p>5. Evidence.—Where, pending action, defendant died and plaintiff became incompetent to testify, decedent’s administrator at second trial may prove plaintiff’s statements at first trial.</p>