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date upon which appellant made demand upon appellee Laprade therefor.

It follows that the decree appealed from must be reversed and the cause remanded to be further proceeded with in accordance with this opinion.

Mistakes for Which Written Instruments may be Canceled are discussed in the recent note to Steinmeyer v. Schroeppel, ante, p. 227. Avoidance of Contracts on the Ground of Mistake is discussed in the notes to Miles v. Stevens, 45 Am. Dec. 631; Alabama etc. Ry. Co. v. Jones, 55 Am. St. Rep. 494.


[106 Va. 663, 56 S. E. 561.]

CORPORATIONS-Right to Purchase Their Own StockCorporations may purchase, hold and sell shares of their own stock, provided they act in good faith and without intent to injure their creditors. (p. 1029.)

APPELLATE PRACTICE Review of Evidence.-The only way in which the evidence can be subjected to review on appeal as to the action of the trial judge in granting and refusing instructions, or in overruling a motion for a new trial, is by proper bill of exceptions. (p. 1030.)

S. A. Hall and S. S. P. Patteson, for the plaintiff in error. J. R. Moss, Hubard & Gayles and F. C. Moon, for the defendants in error.

664 HARRISON, J. This action was instituted by the plaintiffs, Camden & Driscoll, against the United States Mineral Company, to enforce the payment of a balance of $2,500, alleged to be due them from the defendant company. The declaration avers that the plaintiffs sold to the defendant company a tract of twenty acres of land for the agreed price of $5,000; that of this sum the defendant paid $2,500 in cash. and for the residue delivered to the plaintiffs certificates for twenty-five shares of its capital stock of the par value of $100 per share, upon the promise and agreement on the part of the defendant company that within four months from the date of such agreement, to wit, the twelfth day of March 1903, it would redeem and purchase the stock so issued to the

plaintiffs at its face value, and thereby pay the $2,500 balance of purchase money due for the land sold. The plaintiffs further aver that relying upon this promise and agreement, which was made as an inducement thereto, they parted with their title to the twenty acres of land by delivering to the defendant a deed therefor; "yet the defendant, not regarding its undertaking and promise, but contriving and intending to deceive and defraud the plaintiffs, hath not performed its promise to pay the plaintiffs the balance of $2,500 of purchase money, or any part thereof.”

There was a demurrer to the declaration, and the grounds of demurrer being called for by the plaintiff, they were specified in writing to be "that a corporation has no authority to purchase its own stock; that the contract set out in the first, second and fourth counts of the declaration is an unlawful contract and a fraud upon the other stockholders; and for divers other causes." Only the grounds of demurrer pointed out in this written specification can be considered here, it being the function of this 665 court to pass upon the very case which was before the lower court.

As to the last ground mentioned it is sufficient to say that there is nothing on the face of the declaration to suggest that the contract set out is unlawful or in any particular a fraud upon the stockholders of the defendant company.

The broad proposition contained in the first ground of demurrer, that a corporation has no power to purchase its own stock, is wholly untenable. In the absence of charter or statutory prohibition, it is well settled, indeed the prevailing doctrine in the United States, that corporations may purchase, hold and sell shares of their own stock, provided they act in good faith and without intent to injure their creditors: Rivanna Nav. Co. v. Dawsons, 3 Gratt. 19, 46 Am. Dec. 183; Shoemaker v. Washburn L. Co., 97 Wis. 585, 73 N. W. 333; Republic L. Ins. Co. v. Swigert, 135 Ill. 150, 25 N. E. 680, 12 L. R. A. 328; Rollins v. Shaver Wagon Co., 80 Iowa, 380, 20 Am. St. Rep. 427, 45 N. W. 1037; Dock v. Schlichter Jute Co., 167 Pa. 370, 31 Atl. 656; Blalock v. Kernersville M. Mfg. Co., 110 N. C. 99, 14 S. E. 501.

In the light of these authorities there can be no question that the defendant had the power to purchase its own stock under the circumstances of the case stated in the declaration, and therefore the demurrer was properly overruled.

The other assignments of error, which are to the action of the circuit court in giving certain instructions, and in refusing to set the verdict, in favor of the plaintiffs, aside as contrary to the law and the evidence, cannot be considered by this court, for the reason that the evidence, which must be looked to in connection with each of such assignments, has not been made a part of the record by a bill of exception. There is printel with the record, beginning on page 31 and ending on page 163, a statement purporting to be the evidence offered by the plaintiff's and defendant, at the end of which is the following eertificate by the judge presiding at the trial: "I hereby certify 666 that the foregoing is all the evidence in this case." How or when this statement got among the papers of the case nowhere appears. It is not made the subject of a bill of exception. It is not referred to or mentioned in any of the bills of exception taken in the case; nor is it identified in any way by being attached to a bill of exceptions, or otherwise.

The only way in which the evidence or the facts proved before a jury can be made a part of the record is by a bill of exception. This subject has been so often adverted to in the opinions of this court that it ought to be well understood; and yet the frequency with which the question is raised in this court that the evidence has not been made part of the record by a proper bill of exception shows a lack of care in the preparation of records for an appeal that is greatly to be regretted. The object of the institution of bills of exception was to enable a party to spread upon the record the matters that occurred at the trial. Unless this is done, the case shows nothing but the process, the pleadings, the verdict and the judgment: Bowyer v. Chestnut, 4 Leigh, 1, 5; 4 Minor's Institutes, 728, 729, 742, 743.

In the recent case of West v. Richmond Ry. etc. Co., 102 Va. 339, 46 S. E. 330, this court said: "All presumptions are in favor of the correctness of the judgment of the court below and against the exceptor, and unless a proper bill of exception is taken, setting forth specifically and definitely the allegation of error relied on, and so much of the evidence as is necessary to enable the appellate court to pass intelligently upon the question raised, the judgment of the trial court must be sus tained. The plaintiff in error having failed to observe that requirement by having the evidence at the trial incorporated in the record, this court has nothing before it upon which to base an opinion with respect to the rulings of the court in the

particulars complained of": Citing numerous decisions of this court to the same effect. In that case it is also said, with respect to the suggested hardship of disposing of the case in the absence 667 of the evidence, that this court is not responsible for the omission, and is powerless to supply the deficiency. In the practical administration of justice courts must be satisfied to enforce the law as they find it. They cannot undertake to prevent hardship in particular cases by a departure from established principles.

For these reasons the judgment of the circuit court must. be affirmed.

A Corporation may, under ordinary circumstances, purchase its own stock: See the note to Commercial Nat. Bank v. Burch, 33 Am. St. Rep. 339; Wisconsin Lumber Co. v. Greene etc. Tel. Co., 127 Iowa, 350, 109 Am. St. Rep. 387. Compare Adams etc. Co. v. Deyette, 8 S. Dak. 119, 59 Am. St. Rep. 751. The general rule on this question is this: A private corporation may purchase its own stock if the transaction is fair and in good faith free from actual or constructive fraud, provided the corporation is not insolvent or in process of dissolution, and the rights of its creditors are in no way affected by the purchase: Porter v. Plymouth Gold Min. Co., 29 Mont. 347, 101 Am. St. Rep. 569; Hall v. Henderson, 126 Ala. 449, 85 Am. St. Rep. 53.






BUCKEYE BUGGY COMPANY v. MONTANA STABLES. [43 Wash. 49, 85 Pac. 1077.]

CONTRACTS_Severability-Parol Evidence to Vary.-If a contract for the sale of two articles for one sum is entire, the acceptance of one amounts to the acceptance of both, and parol evidence is not admissible to explain the consideration. (p. 1035.)

CONTRACTS Severability. If several articles are sold for a single and entire consideration, the contract of sale is entire and cannot be severed, except by agreement of the parties, but, on the other hand, if several articles are sold, and a separate price is agreed upon for each, although a single instrument of transfer may be executed reciting a single consideration for the whole, then for sufficient cause shown, the contract may be rescinded as to a part and enforced as to the remainder. (p. 1035.)

CONTRACTS-Severability-Parol Evidence.-If two articles are sold at the same time and the contract recites a single consideration for both, parol evidence is admissible to show that a separate price was agreed upon for each. (p. 1036.)

CONTRACTS-Evidence of Parol Contemporaneous Agreement. A written contract entered into with an agent for the purchase of two articles, reciting that no agreement should be recognized unless written therein, and that no verbal agreement should be recognized, cannot be varied by evidence of a contemporanous oral agreement. (p. 1036.)

G. M. Emory and J. F. Murphy, for the appellant.

Emmons & Emmons and H. T. Granger, for the respondent.

49 RUDKIN, J. On the fifth day of December, 1902, the defendant executed and delivered to the plaintiff the following written order:

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