Wilson v. Hawkins

In this case plaintiff seeks a declaratory judgment with respect to a real estate sales contract and indemnity agreement relating to a sale of a motel business.

Defendant has demurred on the grounds the case is not subject to declaratory relief because the case seeks to establish a dispute under the indemnity agreement or because of the alleged fraud of the defendant in the transaction.

Were it not for the alleged indemnity agreement between the parties which by its terms allows for offset of expenses, damages, etc. by plaintiff against installment payment due defendant under a note securing the sale, I would agree with defendant. Without this element in this case, the case would be more properly the subject of a claim of fraud and deceit according to the allegations. Because the indemnity agreement and the terms thereof are alleged, the case seems appropriate for declaratory relief given the events alleged concerning the actions and responses of the parties. In this connection, plaintiff alleges that after he gave notice to defendant of his intent to avail himself of the offset terms of the indemnity agreement, she rejected this approach and threatened foreclosure.

*288It appears from the motion for judgment that the matters pled therein are well within the scope of declaratory relief. According to § 8.01-191, Code of Virginia of 1950, as amended, the purpose of declaratory relief "is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor." The declaratory judgment statutes have been interpreted to apply to just the situations posed by the allegations here.

Accordingly, the demurrer is overruled.