Casto v. Martin
| Citation | 230 S.E.2d 722,159 W.Va. 761 |
| Decision Date | 23 July 1976 |
| Docket Number | No. 13541,13541 |
| Parties | Helen G. CASTO, Executrix, etc. v. George T. MARTIN. |
| Court | Supreme Court of West Virginia |
Syllabus by the Court
1. A party seeking to introduce a private writing must offer competent proof showing its authenticity or genuineness. Instruments of this kind do not prove themselves.
2. The authenticity of a private writing may be established directly by proof of handwriting or by indirect or circumstantial evidence.
3. 'A letter not shown to be in the handwriting of the person to be affected by it may sometimes be examined for internal evidence of the source from which it came and such evidence may be sufficient to render the letter admissible in evidence.' Point 7 Syllabus, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).
4. 'Whether the authenticity of a letter is sufficiently established to render it admissible in evidence is a matter largely within the discretion of the trial court.' Point 9 Syllabus, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).
5. 'The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.' Point 10 Syllabus, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).
6. Delivery of a promissory note is essential to its efficacy, but the delivery may be actual or constructive. Delivery to a third person with a concurrent intention to relinquish all dominion is a sufficient constructive delivery.
7. Delivery of a promissory note to a third person is ineffectual when such delivery is conditioned upon an event which does not occur.
8. Delivery of a promissory note to a third person, who is the agent of the maker, is not a sufficient constructive delivery, since the maker may revoke his agency at any time before a delivery is actually made.
9. 'Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence.' Point 1 Syllabus, Fielder v. Service Cab Co., 122 W.Va. 522, 11 S.E.2d 115 (1950).
10. Where the evidence given on behalf of the plaintiff is clearly insufficient to support a verdict for him so that a verdict if returned by a jury, must be set aside, and the evidence of the defendant is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the defendant.
DiTrapano, Mitchell, Lawson & Field, Rudolph L. DiTrapano, Charleston, Davis & Nesius, John J. Nesius, South Charleston, for appellant.
Steptoe & Johnson, Edward W. Eardley, Simpson & Baughan, Robert L. Baughan, Charleston, for appellee.
This action was instituted to recover upon a promissory note for $94,073.48 signed by the defendant, George T. Martin, made payable to the order of Claude C. Casto. Contemporaneously, Casto had endorsed all his corporate stock in McKay Corporation over to Martin for transfer to Donald Carman. The note was never out of the possession of the maker's attorney, it being the defendant Martin's contention that payment was to be made only if he first got paid for the stock by the purchaser, Carman. Carman defaulted and Martin repurchased the stock at a foreclosure sale. Casto died and his widow brought this suit as executrix of his estate.
The case was tried before a jury in the Common Pleas Court of Kanawha County and the trial court entered judgment in favor of the plaintiff upon a jury verdict of $94,073.48, the amount of the note. The judgment was affirmed by the Circuit Court of Kanawha County and the defendant Martin was granted an appeal to this Court.
The three major questions forming the basis of this appeal are whether the trial court erred (1) in admitting into evidence an unauthenticated and wholly typewritten memorandum purporting to be from the defendant to plaintiff's testator; (2) in failing to direct a verdict in the defendant's favor at the conclusion of plaintiff's evidence and at the conclusion of all the evidence and in refusing to set aside the verdict and judgment because the evidence sufficiently established that the delivery of the note was predicated upon the occurrence of a condition precedent; and (3) in giving Plaintiff's Instruction 4 as amended.
Three commercial events provide the background for the disputed liability upon the note: (A) George T. Martin, the defendant, Claude Casto, the plaintiff's decedent, and two other associates bought controlling interest in the First National Bank of South Charleston; (B) two years later Martin and the same associates sold all their stock to Donald Carman upon a deferred payment arrangement; (C) Carman defaulted in making the second and final payment and a foreclosure sale was held.
Although this case presents a rather complex factual situation, an expanded presentation of the facts as they relate to these three events reveals but little dispute about what transpired.
Warden Allen, who owned 42% Of the stock of the First National Bank of South Charleston, died on June 16, 1967. Since an additional 10% Of the bank stock was owned by other members of his family, collectively the Allen family held the controlling interest in the bank.
After the death of Warden Allen who had served as president of the bank until his death, there was apparently divided sentiment about whether the stock should be sold to George T. Martin or to Claude C. Casto. Casto for a number of years had served as vice-president of the bank. When Casto could not secure the funds to buy the stock, it was offered to Martin.
Martin, who was not experienced in the banking business, invited Casto to participate with him in the purchase. Casto was permitted to include two other bank employees in the venture. Using Martin's credit and cash to bind the deal, the four associates formed a bank holding company called promissory notes in full payment therefor as follows:
Name Shares Note Amount
---------------- ------ -----------
George T. Martin 250 $250,000
Claude C. Casto 100 100,000
Garth E. Thomas 50 50,000
Lovell Myers 30 30,000
McKay Corporation then borrowed $719,900, the full purchase price of the South Charleston Bank stock, from The Charleston National Bank, pledging the 6,260 shares purchased from the Allens as collateral.
Martin agreed that the salaries of Casto, Thomas and Myers at the First National Bank would be increased sufficiently to retire their notes and thus pay for their McKay stock over a ten-year period. The approximate annual salary increases were, respectively, Casto $11,000; Thomas $5,500; and Myers $3,500. The parties, to insure the financial stability of McKay, contributed $10,000 to the corporation as 'seed money' in the same ratio as their stock holdings. When McKay Corporation income from its bank dividends became insufficient to keep The Charleston National Bank loan current, Martin bought an additional 290 shares of McKay stock at the original price.
In unrelated transactions, George Martin, individually, had purchased other shares of First National stock. About 18 months after the Allen sale to McKay Corporation, Martin and Casto jointly purchased a block of 2,800 shares in the same bank.
Sometime in 1969, Martin was approached by Donald Carman who expressed an interest in purchasing controlling interest in the South Charleston bank. By this time various stock splits had apparently inflated the number of shares of stock outstanding. McKay Corporation held 20,866 shares and Martin individually owned 13,699 shares. Martin advised that he would only sell if Carman would purchase the stock of his associates at the same unit price. After some negotiation and discussion principally between Carman and Martin, Carman and Martin executed an agreement dated August 4, 1969, by which:
1. Martin sold Carman 3000 shares of bank stock at a price of $65.00 per share.
2. For the sum of $55,000 Martin granted an option to Carman
a. to purchase all 720 shares of McKay Corporation or its 20,866 shares of bank stock for $1,356,290 (which would be $65.00 per bank share);
b. to purchase Martin's remaining 10,699 individually held bank shares for $695,435 (which equals $65.00 per share);
c. to purchase Martin's controlling interest in Wheeling Coca-Cola Bottling Co. for $733,000;
d. to purchase Martin's controlling interest in McNicol-Martin, a Clarksburg china company, for $195,000.
The total purchase price for the optioned items was $2,979,725, subject to certain adjustments plus credit for the $55,000 option price. The option was exercisable by payment of the balance on February 4, 1970, or on August 4, 1970, with an 8% Increase in the gross price. Apparently sometime after the date of the document, August 4, 1969, Martin and Carman treated the option as an agreement of sale of the various business entities and Carman gave his note, payable on the respective exercise dates, to Martin at The Charleston National Bank.
In a separate transaction on October 15, 1969, Martin and Casto sold to Carman the shares of bank stock which they held jointly. The unit price of the shares appears to be the same $65.00 rate and this sale, which was apparently for cash, yielded each a profit of $35,000.
On October 17, 1969, events crucial to the present dispute took place. Each stockholder of McKay endorsed his shares over to George Martin. New stock certificates of McKay, representing the shares of surrendered stock, including those formerly held by Martin, were issued to Carman. On the same date, Martin had McKay Corp. return the promissory note of each stockholder with the...
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