
    *Cunningham v. Smith & al.
    July Term, 1853,
    Lewisburg.
    [60 Am. Dec. 333.]
    1. Action on Bond — Plea of Failure of Consideration— Averments. — In an action of debt upon a bond, defendant pleads that tbe bond was given for tbe price of goods wbicb be bought of plaintiff, wbo represented that they were sound and marketable, when In fact they were unsound and damaged, and by means thereof unsaleable; but the plea does not aver a warranty of tbe quality of tbe goods; or that tbe plaintiff knew that the said representations made by him were untrue; or that he used any fraud or art to disguise or conceal their true condition or quality. Tbe plea is defective; and properly rejected when tendered.
    2. Same — Same—Same.—But in such case tbe plea avers that the representations were untrue, • and that the plaintiff at the time oí making them knew them to be untrue, and knowingly made them with the intent to defraud the defendant; and proceeds to set out the unsoundness of numerous articles purchased, and to detail particulars in which the representations had turned out to be untrue: This is a good plea.
    3.Pleading — Duplicity—Special Demurrer. — Duplicity in a plea can only be objected to by a special demurrer.
    This was an action of debt on a bond for tour hundred and four dollars, instituted by Smith and Sinclair against H. B. Cunningham, in the Circuit court of Ritchie county. The defendant filed a special plea in the nature of a setoff, for two hundred dollars, to which the plaintiff demurred. He also tendered another special plea in the nature of setoff, which was objected to by the plaintiff and rejected by the court: To which opinion of the court rejecting the plea the defendant excepted. Both of these are set out in their substance in the opinion of Judge Daniel. On the hearing of the cause the court below sustained the plaintiff’s demurrer to the defendant’s plea, and rendered a judgment in favor of the plaintiff for their *whole debt. Whereupon the defendant applied to this court for a supersedeas, which was awarded.
    Fry, for the appellants.
    There was no counsel for the appellees.
    
      
      Action on Bond — Statute of Equitable Defences— Want of Consideration. — In Harris v. Harris, 23 Gratt. •751, it was said: “It has been repeatedly held by this court that the words ‘failure in the consideration’as used in the statute (Va. Code 1849, ch. 172, § 5; Va. Code 1860, ch. 172, § 5; Va. Code 1887, § 3299), refer to contracts originally founded on a valuable consideration, and not to contracts without consideration. Gunningham r. Smith, 10 Gratt. 255; Watkins v. Hopkins, 13 Gratt. 743.”
      See principal case also cited as authority for this proposition in Williamson v. Cline, 40 W. Va. 206, 20 S. B. Rep. 921. See also,- monographic note on "Bonds” appended to Ward v. Churn, 18 Gratt. 801; monographic note on “Consideration” appended to Jones v. Obenchain, 10 Gratt. 259.
      In accord with the inference to be drawn from the first and second headnotes, that the vendor is not liable for defects in goods sold, where there is no warranty, unless he makes a false representation which he knew at the time to be untrue or uses fraud to disguise the true condition of the goods, see Mason v. Chappell, 15 Gratt. 572, and foot-note.
      
    
    
      
      Pleading— Duplicity — Special Demurrer. — See Norfolk & W. R. Co. v. Ampey, 93 Va. 122, 25 S. E. Rep. 226, where Jtjdgb Rteby delivering tbe opinion of tbe court said: “But even if this count was obnoxious to the charge of duplicity, the fault could not be taken advantage of on a general demurrer. The obj ection for duplicity relates to matter of form only, and does not go to tbe substance of tbe pleading. Being an obj ection to the form and not to tbe substance of the declaration, it could only be availed of, even at common law, with all of its rigid rules of pleading, by special demurrer. Tbe party demurring was required to lay his finger upon the very point. Cbitty on PI. 655, 662 ; 4 Minor’s Institutes, Pt. 2, 939; 5 Rob. Pr. 305; Smith v. Clench, 2 Ad. & Ellis, N- S., 836; Fairfax v. Lewis’s Adm’r, 11 Leigh 243; Kennaird v. Jones, 9 Gratt. 189; Cunningham v. Smith, 10 Gratt. 257,• Smith’s Adm’r v. Lloyd’s Ex., 16 Gratt. 310, 313; Grayson v. Buchanan, 88 Va. 251, 13 S. E. Rep. 457; and King v. Howard, 1 Cush. 141. Where special demurrers have been abolished, duplicity in pleading cannot now be reached by a demurrer. 5 Rob. Pr. 305; 3 Id. 509; King v. Howard, 1 Cush. 141; Coyle v. B. & O. R. R. Co., 11 W; Va. 107; and Sweeney v. Baker, 13 W. Va. 200.” See also, in accord, Smith v. Lloyd, 16 Gratt. 296, and foot-note. By Va. Code 1849, ch. 171, sec. 31 (Code 1887, sec. 3271), special demurrers were abolished in Virginia.
      In some cases, it has been held that in those jurisdictions, where special demurrers have been abolished, obj ection for duplicity in pleading cannot be maintained; and there seems to be some authority for this view both in Virginia and West Virginia. In Grayson v. Buchanan, 88 Va. 257,13 S.'E. Rep. 457, it was said that an objection to a plea on the ground of duplicity can be taken, at common law, only by special demurrer, wbich is not now available In Virginia except as to dilatory pleas, citing 4 Min. Inst. (3d Ed.) 939. See, in accord, Coyle v. B. & O. R. Co., 11 W. Va. 106; and Sweeney v. Baker, 13 W. Va. 201.
      But in Harris v. Harris, 28 Gratt. 750, and Little Kanawha, etc., Co. y. Rice, 9 W. Va. 636, 640, it was decided that pleas were properly rejected because of duplicity. See also, O’Bannon v. Saunders, 24 Gratt. 138, 147, and Virginia, etc., Ins. Co. y. Saunders, 86 Va. 969,11 S. E. Rep. 794. In this last case, it was intimated that if there had been duplicity in the replication objected to, the objection on that ground would have been sustained.
      Prof. Graves, in an editorial (which we have followed in the above short discussion of this Question), 1 Va. Law Reg. p. 385, says: “As the authorities now stand, it is impossible to say whether duplicity in a declaration or plea can be made a ground of objection in Virginia. It seems settled that it cannot be done by demurrer (the case of (Junningluimv. Smith, 10 Gratt. 2S5, was no doubt decided under the law as it existed prior to July 1, 1850); but it does not follow that the obj ection is in no way available. It is probable that in Virginia a plea bad for duplicity might, on motion, be rejected; or, ifalreadyreceived.be ordered to be stricken out — a procedure common in Virginia with reference to defective pleas. And, perhaps, the same course would be pursued as to a ■count in a declaration bad for duplicity. See 5 Rob. Prac. 305.'’
      Same — Same.—In Guarantee Co. v. Nat. Bank, 95 Va. 488, 28 S. E. Rep. 909, the principal case is cited as authority for the proposition, that, where a plea presents two or more distinct and sufficient de-fences, either of which, if true, would necessitate a finding on the issue in favor of the defendant, the i plea is bad for duplicity.
    
   DANIEJD, J.

The plea rejected by the court was, I think, defective. It does not aver a warranty of the quality of the goods for the price of which the single bill in the declaration mentioned is alleged to have been given; nor does it aver that the defendants in error knew that the representations alleged to have been made by them with respect to the soundness and marketable quality of said goods were untrue, or that they used any fraud or art to disguise or conceal their true condition or quality. The plea is, I think, liable also to a further objection. After setting out that the defendants in error had represented the goods to be sound and marketable, when in fact they were unsound and damaged, and by reason thereof unsalable, the plea proceeds to state further that the plaintiff in error was a merchant doing business, &c., and that he had endeavored to the best of his skill to keep for sale articles of merchandise of a sound and marketable character, and had usually done so until he was induced, by the false representations of the defendants in error, to purchase the goods in question, and that the mixing of them with the merchandise on hand in his store injured the sale of the others, depriving the said plaintiff in error of custom, and seriously damaging him in his business. And the plea concludes by averring his right to have the damages sustained by reason of the several matters in the plea set forth allowed as a setoff to the bond.

If the special damage to the business of the plaintiff in error as a merchant, just above mentioned, could *avail him as a defence in any form of plea, {about which it is not necessary to express an opinion,) I think it very obvious that a plea relying on such remote consequences would have to be characterised by a particularity of averment, in which the one under consideration is plainly wanting. The plea was, I think, properly rejected. I have been unable, however, to discover any valid ground of objection to the plea demurred to. It distinctly avers that the defendants in error represented the articles bought to be sound and of a good and marketable quality; and that the plaintiff in error, relying upon and believing the said representations, purchased the bill of goods: And that said representations were untrue, and that the defendants in error, at the time of making them, knew them to be untrue, and knowingly made them with the intent to defraud the said plaintiff in error. And the plea then proceeds to set out the unsoundness of numerous articles purchased, and to detail, otherwise, particulars in which the representations had turned out to be untrue. The plea substantially sets out a false warranty and avers damage from its breach.

It is true that this plea labors under the formal defect of duplicity, in as much as it also avers that by the agreement the defendants in error were to forward and deliver all of the articles purchased, and that some of them had never been forwarded and delivered; and damage is claimed for this breach of the agreement. Two distinct grounds of defence, breach of warranty and partial failure of consideration, are thus relied on in one plea. This defect might have been remedied if it had been pointed out by a special demurrer, but it is not of a character so essential to the de-fence as to be reached by a general demurrer. I think therefore that the court erred in sustaining instead of overruling the demurrer; and that for this cause the judgment should be reversed as to the amount of two hundred ^dollars, the damages claimed as a setoff by the plea, and affirmed as to the residue; and the cause remanded for further proceedings, with liberty to the defendants-in error to withdraw their demurrer and reply to said plea.

The other judges concurred in the opinion, of Daniel, J.

Judgment reversed.  