Nottingham v. Ackiss

Citations

• 110 Va. 810
• 67 S.E. 351
• 1910 Va. LEXIS 128

Syllabus

<p>1. Debt&emdash;When Action of Lies.&emdash;An action of debt will only lie for the recovery of a certain sum of money, due by a certain and express agreement.</p> <p>2. Declaration&emdash;Contingent Liability&emdash;Necessary Averments.&emdash;In an action on a contract to pay money when certain designated lots are sold and the purchase money therefor realized, it is necessary to allege in the declaration and to prove not only that the lots have been sold and conveyed, but when the sale and conveyance was made, and that the purchase money therefor has been real-ized, and when.</p> <p>3. Appeal and Error&emdash;Reversal&emdash;Leave to Amend Declaration&emdash;Effect of Amendment&emdash;Case at Bar.&emdash;Where the judgment in an action at law has been reversed by this court and cause remanded, with liberty to the plaintiff to amend his declaration, and he has amended it, it will be- presumed that he made, in his amended . declaration, the strongest presentation of his case that the facts would permit, and, on a second writ of error calling in question the sufficiency of the declaration as amended, if it is not sufficient this court will render such judgment as the trial court ought to have rendered sustaining the demurrer to the de-claration, and will enter up final judgment for the defendant. But under the facts of the case at bar, this judgment will be without prejudice to the right of the plaintiff to file a bill for the specific performance of the contract in suit, or to rescind the same and have the title to the lots mentioned in the contract, or such of them as remain unsold conveyed to him.</p>