of 1849, and the auditor of public accounts, who had been made a 'party by an amended bill, duly appeared and filed an answer, all difficulties as to parties and the regularity of the hearing before the circuit court of Richmond City may be considered as overcome, and we may proceed to consider the case upon its merits."

While the quotation we have given is a strong intimation from the court that the proper method of procedure is to file a bill in the circuit court of the city of Richmond, making the auditor of public accounts a party, thereby giving to the commonwealth, the real party in interest, an opportunity to be heard, and satisfying the principle of equity jurisprudence to which we have adverted, we are indisposed, to hold that the remedy of a citizen against the levy of a tax which is claimed to have been, for any cause, improperly assessed and levied, is to be asserted only in the circuit court of the city of Richmond, as that would impose a serious inconvenience and burden upon a person deeming himself aggrieved.

The state has, however, given a remedy which seems to be plain and complete. By section 567, Va. Code 1904, it is provided, that "any person assessed with taxes on lands or other property, aggrieved by any such assessment, may, unless otherwise specifically provided by law, within two years from the first day of September of the year in which the assessment is made, and any person assessed with a license tax, aggrieved thereby, may, within one year after such assessment, apply for relief to the court in which the commissioner gave bond, and qualified or to which or to whose clerk such bond and the certificate of his qualification were returned. The attorney for the commonwealth shall defend the application; and no order made in favor of the applicant shall have any validity unless it is stated therein that such attorney did so defend; that the commissioner making the assessment, or his successor, was examined as a witness touching the application, and the facts proved to be certified."

We think the remedy afforded by this statute, which provides for bringing both the citizen and the commonwealth before the court, is ample and complete to meet all the exigencies of the case presented in the pleadings.

There is nothing in the City of Petersburg v. Petersburg Benevolent Ass'n, 78 Va. 431, nor in City of Staunton v. Mary Baldwin Seminary, 99 Va. 653, 39 S. E. 596, in opposition to the views here presented. In those cases the respective cities were enjoined from collecting taxes upon property exempt from taxation by law. All the parties in interest were fully justiciable, and were be fore the proper court.

For these reasons, we are of opinion that the decree of the circuit court should be reversed, and the bill of complaint be dismissed.

54 S.E.-3

(105 Va. 269)

WATKINS v. ROBERTSON et al. (Supreme Court of Appeals of Virginia. June 14, 1906.)

1. EVIDENCE-HEARSAY.

Where, in a suit to enforce specific performance of a contract for the sale of certain stock to E. and assigns, defendant R. claimed that he had sold the stock to his codefendant S., evidence of statements made by S. to defendant R. in the absence of both complainant and E. were inadmissible as hearsay.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 1168.]

2. SAME WRITTEN INSTRUMENTS - CONTRADICTION BY l'AROL.

Where a written agreement for the sale of stock provided for a transfer to E. or his assigns, parol evidence was inadmissible to show that the agreement was made for the purpose of authorizing E. to sell the stock to one S. only, at the specified price.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 1787.]

3. SPECIFIC PERFORMANCE-IRREVOCABLE COVENANT-CONTRACT UNDER SEAL-CONSIDERA

TION.

Where a contract or option for the sale of certain stock at a specified price if accepted within a stated time was under seal and recited a consideration of $1 in hand paid, etc., it should be treated as an irrevocable covenant of which equity would enforce specific performance if accepted within the time specified.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 90, 178.] 4. CONTRACTS SEAL CONSIDERATION RECITAL. Where the owner of certain corporate stock executed an option under seal expressing a consideration of $1 by which he agreed to sell such stock for a specified consideration within a certain time to E. or his assigns, which option was assigned to plaintiff, who purchased relying on the option, the owner in a suit to enforce specific performance was estopped to deny that the option was based on a valuable consideration.

Appeal from Chancery Court of Richmond. Suit by Charles H. Watkins against W. S Robertson and others for specific performance of a contract for sale of corporate stock. From a decree in favor of defendants, complainant appeals. Reversed.

Coke & Pickrell, F. W. Christian, and A. B. Guigon, for appellant. Meredith & Cocke, for appellees.

CARDWELL, J. This litigation grows out of the following agreement:

"Memorandum of agreement, made this 26th day of October, 1904, by and between W. S. Robertson, of the first part, and S. S. Elam, of the second part.

"The said W. S. Robertson, party of the first part, in consideration of one dollar to them in hand paid by said S. S. Elam, party of the second part, at and before the execution of this contract, the receipt of which is hereby acknowledged, do hereby covenant, contract and agree to sell to the said S. S. Elam, party of the second part, or his as signs 496 shares of the capital stock of the Watkins-Cottrell Company, at and for the

price of $137.50 per share, and to deliver the same to said second party on payment, or tender by said second party to said first party of the purchase money therefor at the said rate of $137.50 per share; and it is agreed between the parties hereto that the said party of the second part shall have the right to make the said tender or payment of the said purchase money to said first party and thereupon to demand the delivery of the said capital stock until December 1, 1904.

"Witness our hands and seals the day and year first above written.

"Mr. S. S. Elam, Richmond, Va.

"Dear Sir: Referring to the option given you to-day on my 496 shares of stock in the Watwins-Cottrell Company, at $137.50 per share, until Dec. 1, 1904, I beg to advise that if the said option is exercised by you or your assigns I will allow you a rebate of $3,180.38 on the price named in said option.

"Yours very truly, W. S. Robertson."

This latter agreement was by Elam, on the 21st of November, 1904, for value received, also assigned to Oliver J. Sands, or his assigns.

The plaintiff, Charles H. Watkins, filed his original and amended bills in this cause for the purpose of enforcing the specific performance of the contract of October 26, 1904, for the sale of the 496 shares of stock referred to therein, he claiming to have purchased the stock through Oliver J. Sands, on November 21, 1904, in accordance with the terms and provisions of the contract; that on the day and year last mentioned the said Sands did in fact purchase said option contract from Elam, paying him therefor the sum of $3,180.38, and took an assignment thereof from him; that Sands, acting in the matter for the plaintiff, approached the defendant, W. S. Robertson, on the day and year last stated and notified Robertson that he (Sands) desired to exercise said option contract by the purchase of the 496 shares of stock at the price named in the contract, to wit: $137.50 per share, and then and there offered to pay Robertson the full purchase price thereof, but Robertson refused to receive the same, stating that he had already sold the stock to another party; that upon this refusal of Robertson, Sands assigned said option contract to the plaintiff, of which as

signment Robertson was at once notified; and that Robertson was also then notified that the plaintiff was ready, able and willing to pay for the stock the full price agreed upon in the option contract, and warned to make no. assignment or transfer of the stock to other than the plaintiff. An injunction was prayed for and granted, restraining Robertson, his agents, etc., from selling, assigning, or delivering the said shares of stock of the Watkins-Cottrell Company in the bill mentioned, or any part thereof, or in any way parting from the possession of the stock, or the certificates representing the same, until the further order of the court. The plaintiff being sick at the time his original bill was filed, and unable to confer with counsel, he tendered and was permitted to file an amended bill. The amended bill adopts the allegations of the original bill, and in addition thereto sets out more in detail the negotiations and dealings had between the plaintiff and Elam concerning the purchase of the stock, which plaintiff claims to have made on November 21, 1904, and charges that if the contract of October 26, 1904, should be construed to be an option contract merely the same was valid and binding upon Robertson and irrevocable by him, it being supported by a valuable consideration and given under the seal of Robertson; but if not to be construed to be an option contract merely, it is a bilateral contract, valid and binding upon both parties thereto, whereby Elam, in consideration of a covenant on the part of Robertson to sell him and his assigns the 496 shares of the capital stock of the Watkins-Cottrell Company at the price therein named, bound himself unconditionally, on or before the 1st day of December, 1904, to take said stock and to pay to Robertson the price agreed upon in said contract therefor, viz.: $137.50 per share, less the deduction of $3,180.38 from the purchase price, as provided in the agreement made by Robertson in a letter to Elam contemporaneous with the contract and attached thereto as a part there of. It is further charged that the sale claimed to have been made by Robertson of the stock in question to a party other than the plaintiff was made long after Elam had agreed to sell the stock to the plaintiff, and that Robertson had in fact never made the sale he claimed to have made to one W. D. Stuart, president of the Richmond Hardware Company, but that Stuart, a rival in the business of the Watkins-Cottrell Company, merely claimed the sale was made to him. Stuart was, along with Robertson, made a party defendant to the amended bill, which prayed for a specific performance of the contract of October 26, 1904, in accordance with the sale made thereunder by Elam to the plaintiff.

It is proper, perhaps, to state, that in the bills filed by the plaintiff he charges that by reason of his reliance upon the validity of the contract between Robertson and Elam

and an understanding had between himself and Elam, the plaintiff found it necessary to to take a trip North at great cost, trouble, and expense to make his financial arrangements for paying for the stock, and on or about the 21st of November, 1904, returned to the city of Richmond ready and prepared to demand the delivery of the stock and pay the purchase price agreed upon therefor, and that this cost, trouble, and expense would not have been incurred but for his reliance upon the validity of the contract held by Elam with Robertson and the agreement be tween the plaintiff and Elam that the plaintiff should have until the 21st day of November, 1904, to consummate his purchase of the stock in question; and that the agreement be tween the plaintiff and Elam to the effect that the plaintiff should have until the 21st of November, 1904, to conclude his purchase of the stock was by a positive contract entered into and made between Elam and the plaintiff on November 14, 1904.

Robertson answered the amended bill by adopting his answer to the original bill, and also denying that any positive contract had been made between Elam and Watkins on November 14th, or that Watkins had at his own expense taken a trip North to raise the means of buying the stock, but went there to attend a meeting of the National Hardware Association at the expense of the WatkinsCottrell Company. Stuart adopted the answer of Robertson as his own; and upon the pleadings in the cause, the exhibits therewith and an affidavit made and filed by Robertson, the lower court, by its decree, reciting that the case would be rendered doubtful by the conflicting evidence of the parties, and by the consent of both plaintiff and defendant, and in pursuance of the statute in such case made and provided, adjudged, ordered, and decreed that an issue be made up and tried by a jury at the bar of the court on the 23d day of February, 1905, to ascertain whether the alleged purchase of the 496 shares of the capital stock of the Watkins-Cottrell Company, as claimed in the bills of complaint to have been made by the plaintiff, Charles H. Watkins, was and is valid and binding upon the defendant, W. S. Robertson.

Upon the trial of this issue, it was found by the jury that the alleged purchase of the 496 shares of stock in question, as claimed in the bills of complaint to have been made by the plaintiff Watkins, was not binding upon the defendant Robertson. Upon the coming in of this verdict, the plaintiff moved the court to set it aside because contrary to the law and the evidence, and again moved the court for leave to file an amended and supplemental bill. The court by its decree of March 11, 1905, overruled the motion for leave to plaintiff to file an amended and supplemental bill, because the pleadings already filed sufficiently raised all the questions proposed to be raised by the amended and supplemental bill, and all such questions

were presented to the court in the instructions asked for by the complainant on the trial of the issue, and were then, after argument, decided against the complainant; and also overruled plaintiff's motion to set aside the verdict of the jury, and dissolved the injunction theretofore awarded in the cause. From this decree the case is before us for review upon an appeal allowed to the plaintiff in the court below.

At the trial of the issue before the jury, the plaintiff (appellant here) took a number of exceptions to the rulings of the court. From the first of these exceptions it appears that after appellant had rested his case, the appellees introduced themselves and one R. E. V. Farrar as witnesses, who were asked sundry questions and made sundry answers thereto, to each of which appellant excepted, and the ruling of the court in permitting these questions to be asked and answers thereto made is assigned as error.

The objection here made to the evidence is on the ground that it elicited from the witnesses hearsay testimony, in that the questions sought to, and the answers did, bring out certain statements made by Stuart to Robertson in the absence of both Watkins and Elam. It is sufficient, under the circumstances, for us to say that this evidence was improper, and we shall not consider it at length for the reason that the instructions given by the court, as we shall presently see, took the case from the jury.

The next assignment of error is founded upon appellant's second bill of exceptions, which is to the ruling of the court in giving instructions A, B, and C, at the request of appellees.

The theory of Robertson's defense was that the agreement made between him and Elam, which has been above set out, authorized Elam to sell for him (Robertson) the stock in question to one Springer, only, at the price of $137.50 per share, but not to any one else, and that no consideration was giv-· en for this agreement, which he calls an option, and therefore it was not valid and binding upon him (Robertson).

It will be observed that the agreement, or option, in question makes no mention whatever of Springer's name, and while there was some testimony given and improperly admitted to the effect that there was talk be tween Robertson and Elam concerning the sale of the stock to one Springer, the limita tion upon the contract or option, as claimed by Robertson, has no foundation in fact, and could not have been ingrafted upon that agreement except by mutual consent of both parties.

Much has been said also in the argument as to Robertson's unfriendliness towards ap pellant, and that by reason thereof he set about to defeat the sale of the stock by Elam to appellant as soon as he ascertained that it had been made or was contemplated, and that the sale claimed to have been made by Rob

ertson to Stuart was for the purpose of defeating a sale of the stock to appellant, the sale to Stuart being at the same price per share of stock as the sale to appellant. But these matters can have no bearing upon the question to be decided here. The issue in the case is sharply drawn out by the instructions given and refused by the lower court. As claimed by counsel for appellant, the court by instructions A, B, and C, practically took the case from the jury and left them no room to bring in a verdict other than they did. A told the jury that the papers introduced in evidence (that is, the contract and the letter from Robertson to Elam appended thereto) together constitute an option, and that said option was a unilateral or onesided contract: that is, it set forth certain obligations assumed by the defendant, Robertson, but contained none assumed by or binding upon Elam. C made the verdict depend in part upon the disputed questions of fact, whether Robertson subsequently sold the stock to Stuart, and whether Elam assented to that sale; while B, on the other hand, practically directed a verdict for the defendants, as the facts upon which that instruction is predicated were not disputed by the plaintiff that is, that the $1 mentioned in the contract was not actually paid by Elam to Robertson, and that Watkins did not notify Robertson of his purchase of the stock on November 14, 1904, before the attempted withdrawal of the option by Robertson on November 21, 1904.

As opposed to the theory of the case submitted to the jury by these instructions, appellant asked for, among others, three instructions, Nos. 1, 2, and 3, which the court refused. The first is general in its terms, covering the ground specifically mentioned in Nos. 2 and 3, which latter instructions set forth the grounds appearing on the face of the contract between Elam and Robertson, upon which, the court should, as a matter of law, have told the jury that that paper was an irrevocable option.

If the paper in question is to be regarded, as it was regarded by the court below, as merely an option given without a consideration that is, an offer to sell-it might have been withdrawn by Robertson before acceptance by Elam or an assignee of his, by notice to Elam or such assignee; but if given for a valuable consideration it could not have been withdrawn by Robertson before the time specified therein expired. Cummins v. Beavers, 103 Va. 230, 48 S. E. 891, 106 Am. St. Rep. 881

In the case cited, the contract or option was treated as though the consideration named therein was actually paid on the day the option was written, and therefore the case has but little bearing upon the consideration of the question presented here.

Whether the contract here is to be treated as a contract made for a valuable consideration depends, first, upon what force and effect

is to be given a contract under seal over a like contract not under seal; and, second, whether the recital in the contract that a valuable consideration had been paid by Elam and received by Robertson estops the latter in a court of equity to set up, as a defense to a suit for the specific performance of the contract, that no consideration was in fact paid therefor.

It is earnestly contended (1) that the paper shown by Elam to, and relied upon by, appellant was a valid option, supported by the necessary valuable consideration, as evidenced by the solemn representation on its face, and remained in force from the date of the paper, October 26, 1904, to December 1st following, irrevocable by Roberston; and (2) that Roberston is estopped to deny the recital in the paper, that he had received a valuable consideration for its execution, and especially will not be permitted to make this denial to the prejudice of an innocent third party, namely, appellant.

There is much conflict among the authorities as to whether courts of equity will de cree specific performance of an executory contract or covenant because it is under seal, where it is not also supported by an actual valuable consideration, and many of them take the negative view; but, undoubtedly, this is to be ascribed to the fact that the ancient rule of the common law, that a seal conclusively imports a consideration, has been repealed or modified by statute in most of the states, and text-writers in citing cases fail in many instances to make allowance for this fact.

Upon this subject it is said in section 70, 1 Pomeroy's Eq.: "In most of the states all distinction between sealed and unsealed instruments is abolished, except so far as the statute of limitations operates to bar a right of action; in others, the only effect of the seal upon executory contracts is to raise a prima facie presumption of a consideration, while it is still required on a conveyance of land; in a very few, the common-law rule is retained, which makes the seal conclusive evidence of a consideration."

In Virginia we have no statute abolishing or modifying the common-law rule as to the effect to be given to the seal upon executory contracts.

"In a contract under seal, a valuable consideration is presumed from the solemnity of the instrument as a matter of public policy and for the sake of peace, and presumed conclusively, no proof to the contrary being admitted either at law or in equity so far as the parties themselves are concerned. 3 Min. Inst. pt. 2, 139.

We have a number of decisions holding that parol evidence is admissible to show what was the real consideration for a conveyance made of property, where the conveyance was attacked for fraud; but they have no application here, and do not impair the force of the statement which we have just

quoted from Minor's Institutes to the effect that no proof is to be admitted, either at law or in equity, to overcome the presumption from the solemnity of the contract under seal that the consideration named was actually paid as between the parties to the contract.

The case of Willard v. Tayloe, 8 Wall. 557, 19 L. Ed. 501, was a suit in equity for the specific performance of a contract for the sale of certain real estate, and the opinion by Mr. Justice Field says: "The covenant in the lease giving the right or option to purchase the premises was in the nature of a continuing offer to sell. It was a proposition extending through the period of ten years, and being under seal must be regarded as made upon a sufficient consideration, and, therefore, one from which the defendant was not at liberty to recede. When accepted by the complainant by his notice to the defendant, a contract of sale between the parties was completed. This contract is plain and certain in its terms, and in its nature and in the circumstances attending its execution appears to be free from objection. When a contract is of this character it is the usual practice of courts of equity to enforce its specific execution upon the application of the party who has complied with its stipulations on his part, or has seasonably and in good faith offered, and continues ready to comply with them." The opinion further says that it is recognized that this is not invariably the practice, and that this form of relief is not a matter of absolute right to either party, but is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case.

In O'Brien v. Boland, 166 Mass. 481, 44 N. E. 602, the contract specifically enforced was an offer of A. to sell houses to B. within a certain period, the contract being under seal, and it was held that the contract was an irrevocable covenant conditioned upon acceptance within the time named. There it was attempted to withdraw the offer before it had been accepted, and four days afterwards the plaintiff wrote to the defendant that he had purchased in accordance with the offer. The court viewing the contract as an irrevocable covenant conditioned upon acceptance within the time named, because it was under seal, and notice of the acceptance of the offer having been given before the expiration of the time limit, compelled specific performance of the contract. In that case, as in the case at bar, the contention was made that because the defendant could not have compelled the plaintiff to buy before his acceptance of the offer there was a want of mutuality which should defeat the bill. But the court held that the offer being under seal it was an irrevocable covenant, conditioned upon acceptance within ten days, and the written acceptance within that time made it a mutual con

In Guyer v. Warren, 175 Ill. 328, 51 N. E. 580, the contract or option was in all respects similar to the contract here under consideration, except there the offer was to sell land, while here it is to sell shares of stock of the Watkins-Cottrell Company; and the suit was for specific performance of the contract in a court of equity. In the opinion in that case it is said: "Such contracts are perfectly valid, and it is now well settled that a court of equity may decree a specific performance of them. Watts v. Kellar, 56 Fed. 1, 5 C. C. A. 394. The covenant in the present contract, giving an option to purchase, was in the nature of a continuing offer to sell. It was made under seal, and hence must be regarded as having been made upon a sufficient consideration. When the offer to sell was accepted by the appellant by his notice to the appellees, the contract of sale between the parties was completed, and the appellees were not at liberty to recede from it."

In Clark on Contracts (Hornbook Ser. [2d Ed.]) p. 33, it is said, upon a number of authorities cited: "Where, however, an offer under seal in the form of an option is delivered to the offeree, the doctrine that it cannot be revoked applies, and if the option is exercised by acceptance of the offer within the time limited, the agreement will be specifically enforced, or damages may be recovered for its breach." O'Brien v. Boland, supra; Mansfield v. Hodgdon, 147 Mass. 304, 17 N. E. 544; Mathews Slate Co. v. New Empire Slate Co. (C. C.) 122 Fed. 972; Fuller v. Artman, 69 Hun (N. Y.) 546, 24 N. Y. Supp. 13; Willard v. Tayloe, supra; Smith v. Smith, 36 Ga. 184, 91 Am. Dec. 761; Donnally v. Parker, 5 W. Va. 301; Weaver v. Burr, 31 W. Va. 736, 8 S. E. 743, 3 L. R. A. 94.

As opposed to the views taken in the authorities to which we have referred, counsel for appellees rely on, among others, the cases of Graybill v. Brugh, 89 Va. 895, 17 S. E. 558, 21 L. R. A. 133, 37 Am. St. Rep. 894, and Cummins v. Beavers, supra. As already remarked, the last-named case did not turn upon the question here under consideration. The first case was decided on the ground that the option contract in question was onesided and lacking in mutuality, and therefore could not be enforced in a court of equity; but in the later cases of Central Land Co. v. Johnston, 95 Va. 223, 28 S. E. 175, and Cummins v. Beavers, supra, the decision in Graybill v. Brugh was practically overruled. Other authorities, text-writers and decided cases, seem to sustain the view contended for by appellees and taken by the court below, but as the authorities we have cited as supporting the view contended for by appellant are founded upon what appears to us to be the sounder and safer principles and are more in accord with the few decisions by this court bearing upon the question involved, we conclude that they should be followed.