Buchanan, J.,
delivered the opinion of the court.
This is an action of assumpsit brought by the Oliver Refining Company against the Portsmouth Cotton Oil Refining Corporation to recover the sum of $4,818.30, the price and value of certain personal property designated as “stock in trade” in an agreement between the plaintiff and Aspegren and Company (as agents of the defendant), dated July 13, 1906, for the purchase of a cotton oil refining plant and certain personal property owned by the plaintiff. That agreement is fully set out in the case of Oliver Refining Company v. Portsmouth Cotton Oil Refining Corporation and another, 109 Va. 513, 64 S. E. 56.
It is a concessum in this case that under that agreement the defendant in this case was the purchaser of and liable for “the stock in trade” mentioned therein, and .which is the subject matter of this suit, but the principal ground of defense relied on is that the defendant was relieved from that liability by a subsequent agreement made in August, 1906, known as the “Memorandum Agreement,” and which is as follows:
“Memorandum. — In the matter of the purchase of certain land and personal property by Portsmouth Cotton Oil Refining Corporation from the Oliver Refining Company.
“The parties to this agreement being about to pass the deeds relating to this property, and some unsettled matters not having been provided for, it is understood and agreed that those [751] matters, to-wit, the matter of the repairs to the thirty-one (31) tank cars; of the repairs to the cooperage floor; and the matter of the commissions due to or claimed by Aspegren and Company for the sale of the said property, are to be hereafter adjusted between Aspegren and Company and the Oliver Refining Company.
“It is further understood that the taxes upon the land and property sold, for the year 1906, are to be prorated between the seller and the purchaser; that is to say, the Oliver Refining Company will pay the whole of the taxes on all of the property owned by it for the year 1906, and after an adjustment of the proportion to be paid by the Portsmouth Company said Portsmouth Company will repay to the Oliver Refining Company a proper proportion of the same.
“Pending the adjustment of these matters, the personal property on the premises mentioned in the contract of sale will be, and is hereby, delivered to Aspegren and Company as the original purchasers thereof; the amounts, if any, due to Aspegren and Company or the Portsmouth Cotton Oil Refining Corporation to be promptly paid to them, and the amounts, if any, found to be due the Oliver Refining Company, to be promptly paid to them. Settlement for the personal property may await such adjustment.
“Witness the following signatures:
“OLIVER. REFINING CO.,
“Per WILLIAM OLIVER, Pres’t.
“ASPEGREN & CO.,
“PORTSMOUTH COTTON OIL REF. CORP.,
“ADOLPH ASPEGREN, Secy.”
There was a verdict and judgment for the plaintiff for the amount sued for, and to that judgment this writ of error was awarded upon the petition of the defendant.
In addition to the defense that it had been released by the said “Memorandum Agreement,” the defendant offered a special plea, designated in the record as a “plea of estoppel,” [752] which the court rejected. This action of the court is assigned as error.
The court properly refused to permit that plea to be filed.. The facts stated therein as to the proceedings had in the-Supreme Court of the State of New York in the case of Oliver Refining Company v. Aspegren and Company, and Portsmouth Cotton Oil Refining Corporation, did not amount to a retraxit, but was a mere discontinuance or dismissal of the plaintiff’s action against the Portsmouth Cotton Oil Refining’ Corporation, and was no bar to a future action against that company. See Coffman & Richardson v. Russell, 4 Munf. 207; Muse, &c. v. Farmers Bank, 27 Gratt. 252.
The next question is: “Did the memorandum agreement have-the effect of releasing the defendant from its liability to pay for “the stock in trade,” under the agreement of July 13, 1906?
The construction of the memorandum agreement is not entirely free from difficulty, but looking at the language employed, the subject matter and the surrounding circumstances (Bank of the Old Dominion v. McVeigh, 32 Gratt. 530, 538), we do not think it was the intention that the defendant should' be released from its purchase of “the stock in trade” under the-contract of July 13, 1906, and thereby to sell that property to Aspegren & Co., but the object was to postpone the time for its delivery to the defendant until the parties could settle or adjust their differences; and that, in the meantime, Aspegren & Co. should hold “the stock in trade,” to secure the payment of any sum that might be found due them upon such-adjustment.
The defendant not haying been released by that agreement from its contract to purchase “the stock in trade,” was the-plaintiff entitled to recover the price and value thereof at the time it brought this action ?
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Buchanan, J.,
delivered the opinion of the court.
This is an action of assumpsit brought by the Oliver Refining Company against the Portsmouth Cotton Oil Refining Corporation to recover the sum of $4,818.30, the price and value of certain personal property designated as “stock in trade” in an agreement between the plaintiff and Aspegren and Company (as agents of the defendant), dated July 13, 1906, for the purchase of a cotton oil refining plant and certain personal property owned by the plaintiff. That agreement is fully set out in the case of Oliver Refining Company v. Portsmouth Cotton Oil Refining Corporation and another, 109 Va. 513, 64 S. E. 56.
It is a concessum in this case that under that agreement the defendant in this case was the purchaser of and liable for “the stock in trade” mentioned therein, and .which is the subject matter of this suit, but the principal ground of defense relied on is that the defendant was relieved from that liability by a subsequent agreement made in August, 1906, known as the “Memorandum Agreement,” and which is as follows:
“Memorandum. — In the matter of the purchase of certain land and personal property by Portsmouth Cotton Oil Refining Corporation from the Oliver Refining Company.
“The parties to this agreement being about to pass the deeds relating to this property, and some unsettled matters not having been provided for, it is understood and agreed that those [751] matters, to-wit, the matter of the repairs to the thirty-one (31) tank cars; of the repairs to the cooperage floor; and the matter of the commissions due to or claimed by Aspegren and Company for the sale of the said property, are to be hereafter adjusted between Aspegren and Company and the Oliver Refining Company.
“It is further understood that the taxes upon the land and property sold, for the year 1906, are to be prorated between the seller and the purchaser; that is to say, the Oliver Refining Company will pay the whole of the taxes on all of the property owned by it for the year 1906, and after an adjustment of the proportion to be paid by the Portsmouth Company said Portsmouth Company will repay to the Oliver Refining Company a proper proportion of the same.
“Pending the adjustment of these matters, the personal property on the premises mentioned in the contract of sale will be, and is hereby, delivered to Aspegren and Company as the original purchasers thereof; the amounts, if any, due to Aspegren and Company or the Portsmouth Cotton Oil Refining Corporation to be promptly paid to them, and the amounts, if any, found to be due the Oliver Refining Company, to be promptly paid to them. Settlement for the personal property may await such adjustment.
“Witness the following signatures:
“OLIVER. REFINING CO.,
“Per WILLIAM OLIVER, Pres’t.
“ASPEGREN & CO.,
“PORTSMOUTH COTTON OIL REF. CORP.,
“ADOLPH ASPEGREN, Secy.”
There was a verdict and judgment for the plaintiff for the amount sued for, and to that judgment this writ of error was awarded upon the petition of the defendant.
In addition to the defense that it had been released by the said “Memorandum Agreement,” the defendant offered a special plea, designated in the record as a “plea of estoppel,” [752] which the court rejected. This action of the court is assigned as error.
The court properly refused to permit that plea to be filed.. The facts stated therein as to the proceedings had in the-Supreme Court of the State of New York in the case of Oliver Refining Company v. Aspegren and Company, and Portsmouth Cotton Oil Refining Corporation, did not amount to a retraxit, but was a mere discontinuance or dismissal of the plaintiff’s action against the Portsmouth Cotton Oil Refining’ Corporation, and was no bar to a future action against that company. See Coffman & Richardson v. Russell, 4 Munf. 207; Muse, &c. v. Farmers Bank, 27 Gratt. 252.
The next question is: “Did the memorandum agreement have-the effect of releasing the defendant from its liability to pay for “the stock in trade,” under the agreement of July 13, 1906?
The construction of the memorandum agreement is not entirely free from difficulty, but looking at the language employed, the subject matter and the surrounding circumstances (Bank of the Old Dominion v. McVeigh, 32 Gratt. 530, 538), we do not think it was the intention that the defendant should' be released from its purchase of “the stock in trade” under the-contract of July 13, 1906, and thereby to sell that property to Aspegren & Co., but the object was to postpone the time for its delivery to the defendant until the parties could settle or adjust their differences; and that, in the meantime, Aspegren & Co. should hold “the stock in trade,” to secure the payment of any sum that might be found due them upon such-adjustment.
The defendant not haying been released by that agreement from its contract to purchase “the stock in trade,” was the-plaintiff entitled to recover the price and value thereof at the time it brought this action ?
If Aspegren & Co. had been in the possession of “the stock in trade” at that time, and the defendant had not received the benefit of its purchase, it may well be doubted whether [753] the plaintiff could have maintained this action. But that is not this case. It does not appear that Aspegren & Co. ever had actual possession of “the stock in trade” or ever exercised any control whatever over it. On the contrary, it clearly appears — indeed, it is agreed — that “the stock in trade” was delivered at the defendant’s plant by the plaintiff, and used by the defendant. The case made by the record, as it seems to us, is this: the plaintiff and Aspegren & Co., acting for the defendant, entered into the agreement of July 13, 1906, for the sale and purchase of the cotton oil refining plant described in that contract and “the stock in trade;” that when the parties in interest met to finally consummate their agreement by the proper conveyance and transfer of the property sold, and the payment of the consideration, they were unable fully to do so, on account of the difficulties and unsettled matters mentioned in the memorandum agreement; that “the stock in trade” was not then delivered to the defendant, the purchaser thereof, nor paid for by it, but by agreement was to be delivered to Aspegren & Co., to be held by them to secure the payment of such sum, if any, as might be found due upon the adjustment of the claim or claims asserted by them, and settlement for “the stock in trade” was to await the adjustment of the unsettled matters mentioned in the memorandum agreement; that “the stock in trade” was not.taken possession of by Aspegren & Co., but was delivered by the plaintiff at the defendant’s plant and used — that is, consumed by it; that the unsettled matters between the parties have never been adjusted; and that nearly three years after the memorandum agreement was entered into, the plaintiff instituted this action to recover the undisputed price and value of “the stock in trade.” its property, and delivered by it at the defendant’s plant and used — consumed—by the latter. Upon this state of facts, the plaintiff was clearly entitled to recover.
Errors are assigned to the rejection and admission of evidence. It is unnecessary to consider these assignments in de[754] tail, but it will be sufficient to say that if all the evidence offered by the defendant and rejected by the court had been admitted, and all the evidence had been rejected which was offered by the plaintiff and admitted over the defendant’s objection, it could not have affected the plaintiff’s right to recover.
The giving, amending and refusing of instructions is assigned as erroneous. Since, upon the case made and offered to be made, no other verdict than the one found could have-been properly rendered upon correct instructions, the question whether or not the court erred in instructing the jury need not be considered.
Affirmed.