Hutton, Donald M.

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Volume 38 Issue 2 Article 14 February 1932 Pleading--Motion for Judgement--Quasi-Contracts Donald M. Hutton West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Civil Procedure Commons, and the Contracts Commons Recommended Citation Donald M. Hutton, Pleading--Motion for Judgement--Quasi-Contracts, 38 W. Va. L. Rev. (1932). Available at: https://researchrepository.wvu.edu/wvlr/vol38/iss2/14 This Recent Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIA LAW QUARTERLYof the holding company was in turn distributed to the stock-holders of the old corporation. The Court held this a taxablegain although it was argued that it was a distribution in liquida-tion, and not a distribution of surplus. However, in Weiss v.Steam,' where an exchange of stock was made between two cor-porations, and the stock received by one corporation was dis-tributed to its stockholders, the Court held the entire arrange-ment a financial reorganization, which in itself was insufficientto render the new stock taxable as income to the stockholders.Mr. Justice Holmes and ir. Justice Brandeis dissented on theground that the Court was taking a stand inconsistent with itsformer decisions, and it rightly appears so.In summary it may be said that as a general rule any gainaccruing on the exchange of stock in one company for that ofanother will be taxable unless the arrangement was a mere re-organization of a single going concern.-AUGUST W. PETROPLUS.PILADING - MOTION FOR JUDGMENT - QUASI-CONTRACTS. -In Lambert v. Morton' the Supreme Court of Appeals of WestVirginia recently held that the statute providing for the recoveryof money by action on any contract by motion for judgment ap-plies as well to contracts implied in law (quasi-contracts), as toexpress contracts. The case is one of first impression in WestVirginia.Under equally broad statutory language the Supreme Courtof Appeals of Virginia reached the same conclusion in the caseof Long v. Pence's Committee.' Such a construction is desirablein view of the object of the statute, which is to simplify andshorten pleadings and other proceedings, with less chance of amiscarriage of justice. Another advantage of procedure by mo-tion is that a plaintiff may so proceed when it is too late tomature a regular action, or even after the beginning of a termof court, if it shall continue in session long enough for that pur-pose.'8265 U. S. 242, 44 S. Ct. 490, 33 A. L. R. 520 (1924). Contra: Marr v.United States, 268 U. S. 536, 45 S. Ct. 575 (1925). Four judges dissentedon the ground that the case fell within the rule of Weiss v. Steam.1160 S. E. 223 (1931).2W. VA. REv. CODE (1931) c. 56, art. 2, § 6.8 93 Va. 584, 25 S. E. 593 (1896).'BURKs, PLEADING AND PRACTICE (2d ed. 1920) e. 20, p. 219 et mq.1Hutton: Pleading--Motion for Judgement--Quasi-ContractsPublished by The Research Repository @ WVU, 1932RECENT CASE COMMENTSIt is submitted that this holding may be extended to allquasi-contractual obligations, and likewise to obligations arisingupon the commission of a tort where such tort gives rise not onlyto damage to the person injured, but also to a monetary benefiito the tort-feasor. Alternative obligations arise--on the one handan obligation to pay such damages as the plaintiff has suffered,and on the other an obligation to pay for such benefits as the de-fendant has received. If the plaintiff elects to enforce the obliga-tion to make restitution, and proceeds under the statute in ques-tion, no violence is done the language of the statute. True therehas been no assent or voluntary assumption of the obligation, butthe whole law of quasi-contract, from the remedial point of view,depends on the fiction that the defendant has promised to do thatwhich in justice he ought to do.'Virginia has found it desirable to extend the scope of theremedy, until at the present time one may proceed by notice ofmotion for judgment in any case, with certain jurisdictionallimitations, where there is a right to maintain an action at law.!Such provision is a compromise between a system of code plead-ing, and a system of common law pleading as modified by statutes.Doubtless we have proponents of each system. If West Virginiashould make this extension the advocates of code procedure willhave full opportunity to develop the merits of the system. Ifthey prove more satisfactory than the present system the transitionwould be much easier than a complete change at one time.'-DONALD Nt. HUTTON.PUB3IC UTITIES - IS AN IcE BusrNEss "AFECTED WITH APUBLIC INTEREST"? - The plaintiffs were engaged in the manu-facture and sale of ice in Oklahoma City pursuant to a licensegranted according to the statute of Oklahoma.' The defendantwas about to set up a similar business in the same city withoutapplying to the Corporation Commission for the required certifi-cate of convenience and necessity.! The plaintiffs sought to en-join this establishment on the grounds that it is in violation of the5 WooDw~AR, THE LAw Op QuAsi-CoNTRACxs (1913) c. 19, 20.:VA. CODE Axx. (1930) § 6046.SBuRxs, The Code of 1919 (1919) 5 VA. L. REG. (N. S.) 97, 120.1=Okla Sesq. Laws 1925, c. 147.2Ibid, § 2.2West Virginia Law Review, Vol. 38, Iss. 2 [1932], Art. 14https://researchrepository.wvu.edu/wvlr/vol38/iss2/14

Pleading--Motion for Judgement--Quasi-Contracts

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Pleading--Motion for Judgement--Quasi-Contracts

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