American Manganese Co. v. Virginia Manganese Co. , 91 Va. 272 ( 1895 )

Buchanan, J. :

The first assignment of error in this case is to the action of the Circuit Court in overruling the demurrer of the plaintiff in error, which was the plaintiff in the court below, to special plea No. 2, filed by the defendant.

The demurrer raises the question whether under our statute (section 3299 of the Code), allowing special pleas of set-off to be filed, a defendant cau set np a claim for unliquidated damages founded upon a contract other than the contract sued on by the plaintiff. The claim of the defendant that the contract sued on and the contract set np in its plea, for the alleged breach of which it seeks damages, are parts of the same contract, cannot be sustained, as the pleadings show very clearly that they are separate and distinct agreements. The defendant insists that the provisions of section 3299 of the Code, which allows a defendant to plead- “any other matter, as would entitle him either to recover damages at law from the plaintiff or the person under whom the plaintiff claims, or to relief in equity, in whole or in part, against the obligation of the contract’ ’ sued on, is sufficiently broad to allow him to plead “any cause of action arising also on contract, express or implied, and existing at the commencement of the action, and such counterclaim may be either for liquidated or unliquidated damages.”

If the term “or any other matter” authorizes a defendant to make such a defense, is it not also sufficiently broad to authorize him to set up any claim for damages that may be due him arising out of tort as well as contract, and existing when plea is filed as well as when the action is brought ? 'Why-limit it to claims arising out of contracts, or to causes of action existing when the plaintiff institutes his action? There is nothing in the term “or any other matter” which justifies a construction which would include the one and exclude the other. The language of the term “or any other matter” is sufficiently broad, considered by itself, to include both of the defenses named; but considered in connection with its context and tested by settled rules of construction, I do not think it includes either. One of these rules of construction is that general words may be limited to the same genus or class as the specific words which precede them.

In Sutherland on Statutory Construction (section 268) it is said that “when there are general words following particular and specific words, the former must be confined to things of the same kind. ’ ’

In Broom’s Legal Maxims (side page 651) the rule is laid down as follows: “Where a particular class [of persons or things] is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem, generis with such class; the effect of general words when they follow particular words being thus restricted. ’ ’

Sedgwick, in his work on Construction of Statutes (page 361), says : “Where general words follow particular words, the rule is to construe the former as applicable to things or persons particularly mentioned.”

The decisions of the courts fully sustain the text-writers, that this is the true rule of construction in such cases, subject to certain limitations not necesssary to be mentioned here. City of Lynchburg v. Norfolk & W. R. R. Co., 80 Va. 237; Ashbury Railway, &c., Co. v. Riche, L. R. 7 H. L., at pages 664, 665; Insurance Co. v. Hamilton, 12 App. Cas. 484, 486; People v. New York & M. B. Ry. Co., 84 N. Y. 565; State v. McGarry, 21 Wis. 496; St. Louis v. Laughlin, 49 Mo. 559.

Applying this rule of construction to the language under consideration, and the conclusion necessarily follows that unliquidated damages based upon breach of a contract, other than the contract sued on by the plaintiff, cannot be set up in a plea, under section 3299 of the Code. The particular defenses provided for in the preceding words of that section are: (1) Failure in the consideration of the contract; (2) fraud in its procurement; (3) breach of warranty of the title or the soundness of personal property, for the price or value whereof he entered into the contract.

Each of these defenses is based upon matters directly connected with, and injuries growing out of, the contract sued on. The “plain purpose” of the legislature in enacting that section of the Code, as it now stands, was, as Judge Moncure says in. Huff v. Broyles, 26 Gratt. 283, 285, “to give precisely the same measure of relief, on a plea filed under the same, as could be obtained in an independent action brought for the same cause, and to prevent one cause of action from being divided into two. ’ ’ The term ‘ ‘or for any other matter’ ’ w as added so that such purpose could be fully accomplished by allowing, not only the defenses particularly and specifically named in the preceding part of the section, but to allow all defenses of that character or kind based upon such contract, or for injuries growing out of it, to be disposed of in one case. This is the construction put upon it by Mr. Minor and Mr. Bartcn (1 Minor’s Inst. p. 796; 1 Bart. Law. Prac. 511); and is, I think, clearly the true construction. The Circuit Court ought, therefore, to have sustained the demurrer to special plea Ho. 2.

The second assignment of error is as to the mode of ascertaining the damages resulting to the defendant for the alleged breach of the contract set up in special plea Ho. 2, but since that question cannot arise upen the next trial of the cause, it is unnecessary to decide it.

The next and last assignment of error is, that the jury, upon the evidence in the cause, ought not to have found that anything was due the defendant for royalties on manganese ore, as claimed by the defendant in special plea Ho. 1, and that the verdict of the jury on this question was contrary to the evidence, and should have been set aside.

The contract of lease provided that the manganese ore taken from the leased premises should be weighed before it was shipped, but the contract is not definite and clear whether the ore was to be w'eighed as it came wet from the washer, and a royalty of $2 per ton paid on that wet weight, or whether it was to be weighed after it had dried out, and the royalty paid on its dry weight. The evidence, considered on a demurrer to evidence, shows that the ore as it came wet from the washer was about 3 per cent, heavier than it was thirty-six hours afterwards. The ore was weighed as it came wet from the washer, and was at once shipped by the railroad to Pennsylvania, and weighed by the railroad company when it reached its destination, and upon such railroad weight the freights were paid and the royalties adjusted at the beginning of each month, for the oie shipped the preceding month, during the seven years the plaintiff operated the lease. A full statement of the ore shipped each month, the adjustment made as to weights, and the condition of the accounts between the parties for such month, were furnished by the plaintiff to the defendant at the beginning of each month for the preceding month. With each statement a check was sent in payment of the balance appearing to be due for such month, and receipts taken every month by the plaintiff from the defendant in the following words, except as to dates and amounts: .

“Received, March 9th, 1891, of the American Manganese Company, Limited, twenty-four hundred twenty-two 63-100 dollars in full for the above account.

“§2,422.63.”

The defendant does not seem to have been entirely satisfied with the plan of weighing adopted by the plaintiff, and made objections frequently to the deductions made on the net weights, but it continued during the whole seven years to receive these monthly statements, returns and payments, and to give receipts in full for the balance due according to each monthly statement and return. If the defendant objected to the method adopted by the plaintiff for ascertaining the amount of manganese ore upon which it was to receive royalties, or had cause of complaint that the statements and returns made were incorrect for any cause, it was its duty to have made known and to have insisted on its objections to the plaintiff, and to have refused to make monthly settlements, receive payment, and give receipts in full, as ii did.

Although the methods of ascertaining the weight of the manganese ore may not have been in accordance with the agreement of the parties, the long-continued acquiescence of the defendant in such methods, with full knowledge of all the facts, was a waiver of its rights to insist upon the terms of such contract upon that point. If one owing a sum of money, the amount of which is not ascertained and fixed, offers his creditor a certain sum, declaring that it is in full for all that is owing him, which sum is accepted by the creditor, such acceptance is in full discharge of the demand. Donohue v. Woodbury, 6 Cush. 148; McDaniels v. Lapham, 21 Vt. 222, etc.; McDaniels v. Bank, 29 Vt. 230, etc.

Again, if the defendant knew of any irregularity or had ground of complaint at the time these monthly statements, returns and payments were made, it was the duty of the defendant to have made known and insisted upon its objections then; but, if, instead of doing so, it accepted such payments, and gave i eceipts in full for the amounts shown to be due by such setlements and returns, it is concluded by the original amounts as fully as if formal and final settlement of accounts had been made between the parties, and the defendant cannot now go behind such settlements and receipts in full without showing that there was fraud or mistake in weighing the ore, or in making returns thereof, according to the method actually adopted for weighing and making such returns. Shillingford v. Good, trustee, 95 Pa. St. 25-34.

The verdict of the jury was contrary to the evidence upon the issue made upon this plea, and the court ought to have set aside the verdict upon that ground, on the motion of the plaintiff.

I am of opinion, therefore, that the judgment of the trial court should be reversed, the verdict set aside, and a new trial ordered, to be had in accordance with this opinion.

The other judges concur with Buchanan, J.

Reversed.