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EDGAR L. HURST, Plaintiff in Error,
v.
H. A. HOPE, Defendant in Error.
Record 527
FRO~ THE CmCUIT COURT OF THE CITY OF NORFOLK.
''The briefs shall be p::inted in type not less in size than small pica, and shall be nine inches in length and six inches in width, so as to conform in dimP.nsions to the printed records along with which they are to be bound, in accordance with Act of Assembly, approved March 1, 1903; and the clerks of this court are directed not to receive or file a brief not conforming in all respects to the aforementioned requirements."
The foregoing is printed in small pica type for the information of counsel.
H. STEW ART JONES, Clerk.
/5d- v()_ Lfo5 .
i -
IN THE
Supreme Court of Appeals of Virginia ·. AT RICHMOND.
EDGAR L. HURST, Plaintiff in Error,
vs~
H. A. HOPE, Defendant in Error.
To the Honorable J·u.dges of the Supt·e'me Co~trt of Appeals of V it·ginia: '
Your petitioner, Edgar L. Hurst, respectfully represents that he is aggrieved by a final judgment of the Circuit Court of the City of Norfolk, entered on the lOth day of October, l 927, in an action of ass~tmpsit wherein he was defendant and the said Hope, plaintiff. A transcript of the record is presented herewith as a part of this petition. Parties will be spoken of in this petition in the positions they occupied irt the trial court. ·
STATEl\fiDNT OF THE CASE.
This case involves a construction of Section 4309 of the Code of Virginia, and is, so far as counsel can ascertain, a matter of first impression in this state.
The plaintiff Hope brought a suit in ass~tmps# to recover on a qU<l!ntU'm rnentit for acting as a fire insurance appraiset appointed by the defendant, the account filed with the declara-. tion in the common counts stating ''to. services as special representative rendered in connection with the adjustment of tfire loss", and the jury returned a verdict of Fourteen Hun~ dred ($1,400.00) Dollars, the full amount asked for. The evidence showed that the defendant Hurst had fire insurance in the amount of Fifty-five Thousand ($55,000.00) Dollars on certain marine hardware and supplies in the City of Norfolk; that a fire occurred on November 9, 1926; that the de-
2 Supreme Court of Appeals of Virginia.
fendant and the insurance companies negotiated :for quite a while in trying to adjust the loss, but were unable to do so, the defendant Hurst claiming a total loss and th(~ insura;nce companies denying this and never offering him more than ~J:hirty-seven Thousand ($37,000.00) Dollars. This ended in a demand for an appraisement under the terms of the policy, one Seddon being the appraiser appointed by the company an~ the plaintiff by the .insured, these two appraisers· selecting one Corey as umpire. The insurance policy provided, in the usual form, that the appraiser appointed by the companies should be paid by the companies; the appraiser appointed by the insured, paid by the insured, and the compensation of the umpire divided equally between the companies and the insured. The two appraisers were appointed on :&rarch 9, 1927, called in the umpire, and the evidence showed that they worked ont his appraisement seven days, returning their award on March 19, 1927, giving the defendant Hurst Forty-three Thousand Six Hundred and Fifty-five and 89/100 {$43,655.89) Dollars, as the amount of his loss. ·.
There was no agreement betiveen the plaintiff and defendant as to the amount of the former's compensation. The plaintiff testified that h~ was approached by the defendant along in January to act as one of the appraisers; that he immediately went to work thereon, tabulating the articles named in the inventory, wrote to various manufacturers to ascertain the market value of the articles included in the inventory, and that he spent a total of fifty-nine days working on said appraisement. After the appraisement was over he presented a bill in the amount of Fourteen Hundred ($1,400.00) Dollars, which the defendant Hurst thought excessive, and being unable to agree on the amount of proper compensation to be paid the plaintiff Hope for acting as the appraiser appointed by the insured Hurst, resulted in this suit being brought, in which the full amount asked for was awarded by the jury as aforesaid. The plaintiff also justified his bill of Fourteen Hundred ($1,400.00) Dollars, by claiming he was entitled to 5% commission on the difference between the
. amount first offered by "the company's appraiSE!r", which he said was approximately Fourteen Thousand ($1~,000.00) Dollars, and the final award of approximately Forty-three Thousand ($43,000.00) Dollars. Various insurance people testified that from Twenty-five ($25.00) Dollars, to Fifty ( $50.00) Dollars, per day for the time consumed in making the actual appraisement was accepted as reasonable compensation for acting as appraiser.
Edgar L. Hurst v. H. lt. Hope. 3
At the conclusion of the evidence, the defendant asked the !Court for two instructions set forth in the transcript of th~ evidence in Certificate of Exceptions Number 2 (typewrit~ ten record, page 13) ; the first, stating that the plaintiff coul~ not recover in this suit for services prior to his appointment as appraiser, and that being refused, thereupon askeq the C'ourt to instruct the jury that an appraiser is not ~ special representative of the party appointing him so as to be entitled to a commission on the award, but that such appraiser is entitled to reasonable compensation for his services. based on the time actually consumed sitting on such appraisal board, which was also refused. ·
ERROHS ASSIGNED.
1. The court erred in refusing to grant the instructions asked for by the defendant.
2. The Court erred in refusing in setting aside the verdict of the jury and in entering up judgment fo:r; the plaintiff. ;
ARGUMENT.
It is submitted in the first place that "\Vhile an appraiser is' entitled to reasonable compensation from the party who appoints him, he is not the special representative of the party appointing him, but acts as in a quasi judicial capacity.
See Carlston v. St. Paul, etc., l'l2ts·urance Co1npany (:~ion~ tana, 1908), 94 Pac. 756, in which it is said:
''The appraisers are not in any sense the agents or rep-resentatives of the parties who select them." .
See also Connect·imtt, etc., Ins·u.rance Con~pany v. Cohen, 97 Md. 294, 55 Atlantic 675, in which it is said:
"It is fundamental to the conception of such an appraisement-which is in effect an arbitration-that the persons selected to make it should be free from the control and direction of the respective parties wl1ose interests have been con~ :.fided to them, and should act independently and upon their own judgment.''
See also Paine v. J(ent·ucky Refining Co·mpany, (l{y. 1914) J 67 s·. w. 375.
Supreme Court of Appeals of Virginia.
It is submitted that Sections 4308 and 4309 of the Code of Virginia, in a legal sense make it unlawful for the plaintiff to recover in one action for services rendered in a private capacity and also for services rendered in the official capacity of statutory appraiser. These Sections of the Code appear in Chapter 172, regulating fire insurance and fire insurance companies, and are as follo·ws: ·
"4308. Arbitrators and umpires to ·be citizens of Virginia . .:_The arbitrators and umpire selected to ascertain- the los's sustained by any claimant upon any policy of insurance on any property in the State of Virginia. shall be citizens and actual residents of the State of Virginia, unless otherwise agreed between the parties.''
· "4309. Oath of same.-The said arbitrators and umpire, before acting as such, shall take an oath to faithfully discharge their duties, and that they are not in any manner in the employment of nor. related to any individual affected thereby, or in the employment of any insurance company.''
There being, therefore, a statutory prohibition of any person ''in any manner· in the employment',. of the insured, sucl1 employment therefore becomes unlawful in the legal sense.
· In the early case of Capehart v. Rankin, 3 W. Va. 571, the principle is stated that "All contracts which have for their effect anything which is repugnant to justice, or against the g-eneral policy of common law, or contrary to the provision of any statute~ are void".
In Roller v. "b!~trray, 112 Va. 780, tl1e court held there could be no recovery upon such a contract even upon a q~eantum mene.it. In that case the court held that the contract in question 'vas champertous and a recovery on the contract was reversed in 107 Va. 528. The plaintiff then sued on quantum m.eruit, and the court said:
''A champertous agreement being unlawful, it would seem clear that compensation for services rendered undElr it could not be recovered upon a qua.n.tum 1neruit any more than upon the agreement itself without overturning the very foundations upon which the rule refusing to enforce unlawful agreements is based. Of what value would the rule be if the courts permit that to be done by indirection which they refuse to allow to be done directlyf V\7hy· say to t.he attorney, 'You
Edgar L. IIurst v. H. A . .I-Iope. 5
shall not recover upon the champertous agreement the agreed value of the services rendered by you, but you may recover upon an implied contract ('which in fact never existed) th~ value of such services', which in this case is claimed and shown to be the same as the agreement provided for 1 Ilow would any such result uphold the policy of the law, deter others from entering into similar contracts, or promote the public good? To permit a recovery upon a q'lt.antwm rneruit, instead of discouraging, would encourage the making of such contracts, for if the client kept and performed his unlawful h.greement, the attorney would get the benefit of it, and if he did not, the attorney would suffer no loss, since he could recover upon the q'ltant1.t1n 1neruU all that his services were worth. Any process of reasoning ·which leads to such a re-; sult we think must be unsound."
Need }lot Be I n~'rnoral.
So far as contracts in violation of the statute are concerned it may be said, speaking g~nerally, that there is no distinction between acts 'mala in se and acts mala prohibita. When a statute intends to prohibit an act, it must be held that its violation is illegal without regard to reason of inhibition or morality or immorality of act and that is so without regard to ignorance of parties as to prohibiting statute. It is equally unfit that a man should be allowed to take· advantage of what the law says he ought not to do whether the thing is prohibited because it is against good morals or be~ -cause it is against the interest of the State. 6 R. C. L., p. 701.
See Ca-nsler v. Penland, 125 N. C. 578, 34 S. E. 683, in which the court said :
''When a statute intends to prohibit an act, it must be held that its violation is illegal, without regard to the reason of the inhibition, or the morality or immorality of the act, and that is so without regard to the ignorance of the parties as to the prohibiting statute.''
See also N. & TY. Ry. v. Dehart, 127 Va. 415, 103 S'. E. 594 ..
l'he Court quoted Elliott on Contracts with approval as follows:
"It is a w.ell-settled principle of law that the courts will
Supreme Court of Appeals of Virginia.
not aid a party to enforce an agreement made in furtherance of objects forbidden by the statute-or to recover damages for its breach."
See also Penn v. Bornnui.·n, 102 Til. 523. So~tthern Ry. Co. v. W·ilcox, 99 Va. 394.
Stat,ute l·ler-d Not_ Carry Penalty.
It is not necessary that there should be an express prohibition in a statute to render void a contract made in violation of it. It makes no difference whetl1er the prohibition or command is expressed or implied. Even where the statute does. not in express terms declare the act unlawful, yet if it appears from a consideration of the terms of the legislation in question that the legislative intent was to declare the act unlawful, 110 contract involving the doing of such au act can be enforced. 6 R. C. L., p. 701. ·
Section 4309 of the Code does not impose any express penalty for acting as appraiser when in the employment of the insured or the insurance company-nor does it say that a contract for compCJ1sation in -such case would be void, but manifestly the legislature intended to prohibit any one from so acting. If the defendant Hurst had draw11 up a written contract with the plaintiff Hope promising say $25.00 per day for working up the case and $50.00 per day for sitting on the appraisal board, could it be said that this would be a valid contract? What would be the difference then between the services of the plaintiff and the services of the defendant's bookkeeper, acting as appraiser1 It is respectfully submitted that the legislature intended to constitute an appraisal board as a q~tasi judicial body, composed of citizens of this state, sworn to faithfully discharge their duties {that is as a quasi judicial body), expressly .denying to such appraisers the functions of an advocate.
In Niem.eyer v. l"Vright, 75 Va. 239, the Court permitted recovery 011 notes given for fertilizer sold in contravention of an Act of the Legislature requiring certain labels, under penalty of fine, but the legality of the contract ·was sustained because of another provision of the Act giving the purchaser a special right of action. The Court said:
"Now, the special remedy here given to the purchaser is in effect equivalent to a legislative decl~.ration of a forfeit-
Edgar L. Hurst v. II. A. }lope.
ure hy the seller to the purchaser, in the particular case provided for, of the whole of the purchase money of the fertilizer sold, without regard, it would seem, to the extent of the injury sustained; and the infl,iction of the forfei"ture in one aspect is the exclusion of it in any other."
·(Italics added.)
The general rule was conceded by Burks, J ., who delivered the opinion in a quotation from !farris v. Runnels, 12 How. U. S. R. 79, in which it was said:
"When the statute is silent and it contains nothing from, which the contrary can be properly inferred, a contract in contravention of it is void.'' ·
See also Hancock v. Yaden., 121 Ind. 366, 23 N. E. 253. Penn v. Bonunan, 102 Ill. 523, supra.
CONCLUSION.
If it be argued that the above contended for construction of Section 4309 would enable the defendant to accept the benefits of the services of the plaintiff in the fire insurance appraisal without paying for same, it is submitted that thispo'sition is one the plaintiff accepted of his own volition in seeking. to recover in one action for lawful and unlawful subject matter. The defendant denied that he had employed tb~ plaintiff prior to the signing of the appraisal agreement though it is true, of course, that he ask~d the plaintiff to ac~ as such appraiser prior thereto. The plaintiff's bill of particulars set forth 5H days consumed by him in working on the appraisal of said fire loss, and he admitted in his testimony that only seven days were spent on this work after his official appointment. The work was completed with the filing of the award-so 52 of the 59 days' service for which he brought his suit were consumed prior to his appointment.
The appraisal agreement being in the hands of the Insurance Companies was not introduced in evidence, so it does· not appear in evidence whether the plaintiff took the appraisers oath required by Section 4309 or not. It is submitted tl1at this is immaterial; if he took the oath, he is surely estopped to recover for employment therein expressly denied; if he did not take the oath, he is plainly in violation of the statute. As said in Cop1Jel v. Hall, 7 \Vallace (74 U. S.), page 542:
.. 8 Supreme Court of Appeals of Virginia.
.· "Whenever: the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralize its effect. A stipulation in the most solemn form to waive the objection would be· tainted with the vice of the original contract and void for the same reason. Wherever the contamination reaches, it destroys. The principle to be extracted from all the cases is that the la\v will not lend its support to a claim founded upon its violation."
However harsh it may seem, we respectfully submit that the judgment should be set aside, and lawful and unlawful causes having been by the plaintiff intermingled, judgment should be entered by this Court in favor of the defendant.
Your petitioner, therefore, prays that a writ of error and s~e.persedeas may be awarded him and that the judgment aforesaid may be reviewed and reversed, and· such orders
• entered by this court as shall be proper in the premises.
~nd your petitioner will ever pray, etc.
EDGAR L. HURST.
By R. B. SPINDLE, JR., Attorney.
· I, R. B. Spindle, Jr., an attorney practicing in the Supreme Court of Appeals of Virginia, do hereby certify that in my opinion it is proper that the judgment complained of in the above petition, should be reviewed and reversed by this Honorable Court.
R. B. SPINDLE, JR.
Received Dec. 29, 1927.
H. S. J.
Writ of error allowed; S1.tpersedeas awarded. Bond $1,800.
ROBERT R. PRENTIS.
Received December 30, 1927.
H. S. J.
Edgar L. Hurst v. H. A. Hope. .9
VIRGINIA:
Pleas before the Circuit Court of . the City of Norfolk; at the Courthouse thereof, on Friday, the 2nd day of December, in the year of our Lord, Nineteen Hundred and Twenty -seven.
BE IT R.El\iEMBER.ED, that heretofore, to-wit: In the Circuit Court aforesaid, at the Rules holden for said Court on the Third ~Ionday in .June, in the year, 1927, came the plaintiff, H. A. Hope, and filed his declaration of Trespass on the Case ·i·n Assu1n1Jsit against the defendant, E. L. Hurst; as follows: ·
II. A. :Hope, complains of E. L. 1-Iurst, of a plea of trespass on the case in a._c;,c;ru.mtpsit; for this, to-wit: that heretofore, towit: 011 ·the 21st day of :Nlarch, 1927, the said defendant 'vas ~ndebted to the said plaintiff in the sum of twenty-fve hundred ($2,500.00) dollars, for the price and value of goods before that time sold and delivered by the plaintiff to the defendant at his special instance and request;
And also in the sum of Twenty-five Ifundred ($2,500.00) dollars for the price and value of work before that time done by the plaintiff for the defendant at his special instance and
.request; ·
And also in the sum of Twenty-five hundred ($2,500.00) dollars for money before that time lent by the plaintiff to the defendant at his special instance and request;
And also in the sum of Twenty-five hundred ($2,500.00) . dollars for money before that time paid by the
page 2 ~ plaintiff for the use of the defendant at his spe .. cial instance and request;
And also in the sum of rrwenty-five hundred ($2,500.0.0) dollars for money before that time had and received by the defendant to the use of the said plaintiff.
And being so indebted, the said defendant, in consideration thereof, afterwards, to-wit: on the day, month, and year aforesaid, undertook and faithfully promised the said plain.tiff to pay him the said several sums of money in the abov~ count mentioned, when the said defendant should be there;.. unto afterwards requested.
·10 Supreme Court of Appeals of Virginia.
And for this also, that heretofore, to-"rit: on the day, month and year last aforesaid, the said defendant accounted with the said plaintiff of· and concerning divers other sums of money before that time due and owing to the said plaintiff, and then in arrears and unpaid; and upon such accounting, the said defendant was found in arrear, and indebted to the .said plaintiff in the further sum of $2,500.00 dollars, and be-ing so. found in arrear and indebted, he, the said defendant, in consideration thereof, undertook and then faithful1y .promised the said plaintiff to .pa.y to him the said sum of money in this count last mentioned, when he, the said defendant, should· be thereunto afterwards requested.
Yet the said defendant, not regarding his said several promises and undertakings, hath not as yet paid to the said plaintiff the said several sums of money, or any or either of them, or any part thereof, although often requested so to do; but to pay the same hath hitherto wholly neglected and . refused, and still doth neglect and refuse, to the page 3 ~ damage of the said plaintiff of Twenty-five Hun-
dred ($2,500.00) Dollars. And therefor'~ he institutes this action of trespa~s on the case in asswmpsit.
HARRY E. ~1:cCOY, p. q.
Norfolk, Virginia, :Th-'Iarch 21st, 1927.
E. L. Hurst, Norfolk, Virginia.
1927 Jan, 20. TO: H. A. HOPE, DR~
. ..
To services as special representative rendered in connection with adjustment of fire loss 21st. Street, naval supplies, ship chandlery, miscellaneous hardware, ship storH, building material etc., recovery $43,655.89, plus watchmru1 's services {fY $4.00 per day and incidental costs $1,400.00.
WHEREUPON, at the same day, to-,vit: at the Rule8 holden for said Court on the Third l\fonday in June, 1927, came the said defendant, by counsel, and filed herein his plea of N on-Assumpsi~, and thereupon the cause was docketed.
page 4 ~ · The following is the Plea of the General Issue filed at the rules as aforesaid:
Edgar L. Hurst v. H. A. Hope. 11
Now comes the defendant and says that he does not owe the sum of money as in the plaintiff's declaration demanded. And of this he puts himself upon the country.
EDGAR L. HURST,. By Counsel.
~- B. SPINDLE, JR., p. d.
And at another day, to-wit: In the Circuit Court aforesaid on the 11th day of July, 1927:
This day came the plaintiff, H. A. Hope, by his attorney, Harry E. 1\fcCoy, and with leave of court filed herein a bill of particulars of his claim, and the further hearing is continued.
The following is the Bill of Parti·culars, filed by leave of the foregoing order:
Now comes the plaintiff and says in response to request of defendant for a bill of particulars.
1. The amount of time consumed by the services of the plaintiff in the appraisal of the fire loss mentioned in the declaration was fifty-nine days.
page 5 ~ H. A. HOPE, By Counsel.
HARRY E. McCOY, p. q.
And at another day, to-wit: In the Circuit Court aforesaid, on the 27th day of July, 1927.
This day came again as well the plaintiff, by ·his attorney, Harry E. ~IcCoy, as the defendant, by his attorney, R. B . .Spindle, Jr., and thereupon came a jury, to-wit: P. Roskam, C. F. Bonney, T. S. Southgate, R. G. Thomas, E. L. Sawyer, C. A. Roberts and C. W. Thomas, who were sworn to well and truly try th.e issue joined and having fully heard the evidence and argument of counsel retired to their chamber and after sometime returned their verdict in the following words and figures, to-wit: "We the jury find for the plaintiff in the sum of $1,400.00. '' And thereupon the said defendant by his attorney moved the court to set aside the
•
12 Supreme Court of .Appeals of Virginia.
verdict of the jury and grant him a new trial on the ground that the same was contrary to the la'v and the evidence, the further hearing of which said motion is continued.
And at another day, to-wit: In the Circuit Court aforesaid, on the lOth day of October, 1927:
page 7 ~ This day came again the parties, by their at-torneys, and thereupon the Court having fully
l1eard and maturely considered the motion for a ne'v trial heretofore made herein doth overrule the same. To 'vhich action of the Court in overruling said motion the said defendant, by his attorney, duly excepted. Whereupon it is considered by the Court that the said plainti·ff recover against the said defendant the sum of Fourteen Hundred ;])ollars, ($1,400.00) by the Jury in its verdict ascertained ·with legal interest thereon from the 27th day of ,July, 1927., tHl paid, together with his costs about his suit in this his behalf expended. To which action of the court in entering said judgment the said defendant, by his attorney, duly excepted.
And thereupon the said defendant having signified his intentions of applying to the Supreme Court of Appeals of Virginia for a writ of error and s-upersedeas to the judgln.ent herein, it is ordered that execution upon said judgment be suspended for a period of sixty days from the end of this term of Court upon the said defendant or someone for it entering into and acknowledging a proper suspending bond before the clerk of this court in the penalty of Fifteen Hundred Dollars, ($1,500.00), conditioned according to law with surety to be approved by said Clerk.
And now at this day, to-wit: In the Circuit Court aforesaid on the 2nd day of December, 1927, the day and year first herein a hove written : ·
page 8 ~ This day came again the parties, by counsel, and the defendant tendered his several bills of excep
tions to certain rulings of the Court on the trial of the case, 'vhich said bills of exceptions are numbered consecutively from one to three, inclusively, and it appearing to the court, that the said plaintiff has had due notice of the time and place application would be made for the signing of same, were duly signed, sealed a.nd made a part of the record of this case,
Edgar L. Hurst v. H. A. Hope. 13
Within sixty days from the date on which final judgment herein was entered, to-wit: on the lOth day of October, 1927.
The following are the Bills' of Exceptions filed and make a part of the record by the foregoing order:
CERTIFICATE OF EXCEPTIONS NO. 1.
Be it remembered at the trial of this cause that the plaintiff and defendant offered the following evidence in support of their respective cases:
H. A. HOPE, the plaintiff, being duly sworn, testified as follows :
That he is the plaintiff in this suit; that he js a marine architect, having been educated at the Boston School of Technology; that he is experienced in marine architecture, marine hardware and marine supplies; that the defendant, Hurst, came to him sometime in February, 1927, with reference to a fire loss which he, :Hurst, had sustained on a lot of
marine hardware and supplies covered by insur-:page 9 ~ ance in the amount of $55,000.00 and asked him to
. represent the said defendant in the adjustment of said fire loss; the fire insurance company having refused to pay the loss because the inventory thereof was deemed excessive; that he immediately 'vent to work thereon, tabulating the articles named in the inventory and wrote to twentyifive or thirty manufacturers to ascertain the market value of the articles included in said inventory; that the settlement of this fire loss was finally submitted to arbitration and the arbitration agreement being signed on lvfarch 9th, 1927,- he acting as the appraiser appointed by the insured, the defendant Hurst; that a Mr. Seden was the appraiser appointed by the Compa.nies and that he and appraiser S'eden agreed on one Corey as the lTmpire; that he and appraiser Seden worked on said appraisement March 9th, lOth, 11th, 15th, 16th, 17th and 18th, ~{r. Seden being absent two days on a trip to Richmond; that the Companies' appraiser offered $14,000.00 but that he finally got hi~ up to $43,665.89; that he thought he 'Was entited to a compensation of 5% on the difference between said $14,000.00 and the award amounting to the sum of. approximately $1,400.00; that upon the signing of the award by the insurance companies, the defendant came and asked him for his bill; that he told the said defendant his bill was $1,400.00 and that the defendant promised to pay him
14 Supreme Court of Appeals of Virginia.
that sum as soon as he got his money from the insurance companies; that thereafter he asked the defendant if he had gotten his money and found that the same had been P.aid and asked for payment of his bill and that the defendant said he
would have to consult his attorney before paying page 10 ~ him the same; that he reminded the defendant of
his promise to pay him the said sum of $1,400.00; but the defendant refused to pay and that thereafter he got a -letter from defendant's attorney offering him $300.00, which he thought was an insult; that he had given this matter his experience, best judgment and expert knowledge; that he had spent a total of fifty-nine days on said work.
DR.A.I{E, a witness on behalf of the plaintiff, being duly sworn, testified that he was experienced in the adjustment of :fire losses and that it was customary for such appraiser to be paid $50.00 per day.
F. W. HOPE, a witness for the plaintiff, being duly sworn, testi:fi'ed as follows:
That 'he was a brother of the plaintiff; that he and the plaintiff were riding in au automobile on !f.ain ·street and saw the defendant Hurst near the Bank of Commerce; that they stopped and the plaintiff had a conversation with the defendant and that he heard the defendant promise to pay the plaintiff the sum of $1,400.00; that the defendant said something about the plaintiff accepting $1,000.00, but plaintiff said he would not take $1,399.99 as he had been promised $1,400.00.
SOLLINGER, a ·witness on behalf of the plaintiff, being duly s:worn, testified that he was experienced in the adjustment of fire losses
and that it ·was customary for such an appraiser page 11 ~ to receive 5% on the award in cases where the
amount of said award 'vas up to $100,000.00.
EDGAR L. HURST, defendant, being duly sworn, testified as follows:
That he asked the plaintiff Hope, to serve as his appraiser and said he would pay the customary compensation; that the fire occurred November 9th, 1926, and tha.t the appraisers
Edgar L. Hurst -y. H. A. Hope. 15
were appointed ~Iarch 9th, 1927, and filed their award March 19th, 1927; tha.t his insurance was in the amount of $55,000.00, and the insurance companies offered him $37,500.00 prior to the appraisement; that he felt this was inadequate and declined the offer; that after the appraisers had made their award, he saw the plaintiff, Hope, and asked him for his bill, which the plaintiff said was $1,400.00; that he asked the plaintiff ho'v about $1,000.00 but the plaintiff replied that it was $1,40(>.00 or nothing; that .he got his money from the insurance companies about ten days after the award and again saw the plaintiff and asked him how he arrived· at the sum of $1,400.00 .and the plaintiff replied that he owed that much and had to have· that much and said he was 'vorking as trustee and should have 5% commission; that he consulted his lawyer and authorized his lawyer to write the letter offering him $300.00 which he thought 'vas fair compensation.
TILLEY, a witness on behalf of the defendant, being duly s'vorn, testified that he was connected with the firm of Thomson-Ether
edge Company, insurance agents in the City of ·page 12 ~ Norfolk, that the sum of $50.00 per day for the
time actually consumed in making an appraisement was generally regarded as reasonable compensation for a fire insurance appraiser.
CHARLES R. DEY, a witness on behalf of the defendant, being duly sworn, t~stified that he was a member of the firm of George W. Dey & Sons, Fire Insurance Agents 1in the City of Norfolk and had had· many years experience in .said business; and that the customary compensation of a fire insurance appraiser is from $25.00 to $50.00 per day.
ARTHUR HUMPHREYS, a witness on behalf of the defendant, being duly sworn, testified that he was formerly a member of the firm of A. C. H.umphreys & Sons, fire insurance agents~ that he had had many years' experience in said business and that a reasonable compensation of -a fire insurance appraiser was $25.00 per day; said qompeilsation being estimated from the day that ·the appraiser began to work on the matter of adjustment, regardless of the date of .signing the appraisal agreement.
16 Supreme Court of Appeals of Virginia.
The fore going was all the evidence that was introduced upon the trial of this cause.
Teste: This 2nd day of December, 1927.
ALLAN H. HANCKEL, (Seal) Judge of the Circuit Court of the
City of Norfolk.
page 13 ~ CER.TIFIC.A.TE OF EXCEPTIONS NO. 2.
Be it remembered, that at the trial of this cans€!, upon the conclusion of the testimony as set forth in the Certificate of Exceptions No. 1 the plaintiff tendered to the court the following instruction:
INSTR.UCTION NO. 1.
The court instructs the jury that the plaintiff can not re-. ~over in this suit for services prior to his appointment as •appraiser.
Whereupon the court refused to grant said instruction, to which action the plaintiff excepted.
And thereupon the plaintiff tendered to the court the fol-lowing instruction : ·
INSTRUCTION NO. 2.
The court instructs the jury that an appraiser appointed by the insured to appraise a fire loss is not an agent or representative of the party who selected such appraiser, so as to be entitled to a commission on the award; but that such appraiser is entitled to a reasonable compensation for his services based on the time actually consumed sitting on such appraisal board and also any expenses incurred by said appraiser in the making of said appraisal.
Edgar L. Hurst v. H. A. Hope·. 17
Whereupon the court also refused to grant the last .said instruction, to which action of the court the plaintiff excepted;.
and tendered this his ·Certificate of Exceptions page 14 ~ No. 2 which he prays may be signed, sealed and
made a part of the record in this cause which is accordingly done. ..
Teste: This 2nd day of December, 1927.
ALLAN H. HANCiffiL, (.Seal) Judge of the Circuit Court of the
City of Norfolk.
CERTIFICATE OF EXCEPTIONS NO. 3.
After the evidence mentioned in Certificate of Exceptions No. 1· had been fully heard, the case was argued by counsel, and after said argument, _the jury retired to their room to consult of their verdict, and after sometime, returned and . rendered the following verdict, namely: ·''We the jury find for the plaintiff in the sum of $1,400.00,'' and thereupon the defendant moved the court to set aside the said verdict on the ground that the same was contrary to the law and the evidence, which motion was continued. And, thereafter, on the lOth day of October, 1927, the said motion having been fully argued, 'vas overruled and judgment entered by the Court pursuant to the verdict of the jury, to which action of the Court in refusing to set aside the verdict of the jury .the defendant excepted.
Teste: This 2nd day of December, 1927.
page 15 ~ Virginia:
ALLAN H. HANCKEL, (-Seal) Judge of the Circuit Court of the
•Qity of Norfolk.
In the Clerk's Office of the Circuit Court of the City of Norfolk, on the 9th day of December, 1927.
I, Cecil J\tL Robertson, Clerk of the aforesaid Court, do hereby certify that .the foregoing transcript includes the papers filed, and the proceedings had thereon in the case of :H. A. Hope, plaintiff, against E. L. Hurst, defendant, lately pending in our said court.
~/ . Supreme Court of Appeals of Virginia.
I further certify that the same was not made up and completed and delivered, until the plaintiff had due notice thereof and of the intention of the defendant to apply to the Supreme Court of A.ppeals of Virginia for a writ of error and supersedeas to the judgment herein.
Teste:
CECIL M·. ROBERTSON, Clerk.
By CECIL M. ROBERTSON, C. C.
],ee for Transcript, $13.50.
A Copy-Teste:
H. STE"\¥ ART JONES', C. C .
•
INDEX Page
Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Declaration . . . 0 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 9 Verdict 0 o 0 •••••••••••••••••••••••••••••••••••••• 0. 0 11 J udgm.ent o • o ••••••••••••.•• o ••••• 0 0 • 0 0 ••• o •••• 0 0 0 • • 12 Certificate of Exceptions No. 1 ....... o •••••••••••••• 0 13 Evidence 0 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 13
H. A. IIope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 -- Drake ................. ~ .................. 14 F. W. Hope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 -- Sollinger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Edgar L. Hurst . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 -Tilley ..................................... 15 Charles R .. Dey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Arthur Humphreys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Certificate of Exceptions No. 2. . . . . . . . . . . . . . . . . . . . . . . . 16 ·Certificate of Exceptions No. 3. . . . . . . . . . . . . . . . . . . . . . . 17 Certificate .......................................... 17
