Kimmins use, &cv v. Wilson

• Decision Date: 31 July 1875
• Citation: 8 W.Va. 584
• Court: West Virginia Supreme Court
• Parties: Kimmins use, &cv v. Wilson

8 W.Va. 584

Kimmins use, &cv

v.Wilson

Supreme Court of Appeals of West Virginia.

July 31, 1875.

1. "When there has been a trial before a jury and a verdict, on amotion to set aside the verdict and grant a new trial, because the verdict is contrar}-to the evidence, if there be inconsistency, all the testimony, and all the inferences from it, which might be drawn by a jury, without error, that tend to sustain the verdict, must be accepted, and such of the testimony, as directly conflicts with the former, should be discarded.

When an agreement to become stockholders in specified shares, in a partnership, and to pay the amounts subscribed, is signed by I number of persons with the number of shares and the aggregate amount thereof annexed to their names, though no promise is named in the agreement, in effect, each party promises to the others, to pay the amount; and the promises of 1 he ot hers are a consideration for the promise of each, and the parties arc sufficiently definite.

3. When such subscribers organize a company and appoint a treasurer.

and, by agreement of the parties one makes a promissory noie. payable to the person appointed treasurer, for his unpaid share, the previous liability and agreement constitute an adequate ecuside ration for the note.

4. When one of a number of persons who, each, with the others,

agrees to contribute money and form a partnership for a specified purpose, represents to another the existence of facts on which the latter relies, but which do not exist, the other parties are nol bound by such representations, and the contract is not thereby invalidated, as between the party deceived and the others.

5. When the payee of a note, made for the benefit of a company fer

which he is treasurer transfers it to another, and an action is brought in the name of the former for the benefit of the latter, though on the trial the payee testifies that he did not authorize the suit to be brought in his name, this should not influence the verdict or prevent a recovery.

Supersedeas to a judgment of the circuit court of Marshall county, rendered on the 12th day of October, 1872, in a suit then pending in said court between Abner R. Kimmins, who sued for the use of George W. Richmond? plaintiff, and James T. Wilson, defendant. The supersedeas was awarded on the petition of the defendant below. The other material facts appear in the opinion of the Court.

The Hon. Thayer Melvin, judge of said circuit court, presided at the trial below.

R. C. Holliday for the appellant.

J. _L. Parkinson and J. Dallas Ewing for the appellee. Hoffman, Judge:

A. R. Kimmins suing for the use of George W. Richmond, on the 21st day of March, 1871, instituted his action of debt in the circuit court of Marshall county, and afterwards filed his declaration, in which he\lemanded $335, which he alleged that Wilson owed him, and alleged that on the 8th day of September, 1860, Wilson made his note in writing, by which he promised, on or before the first day of October in the same year, to pay to Kimmins the sum first mentioned, for value received; but that Wilson had not done so.

Wilson pleaded first, that he was not indebted: He pleaded secondly, that in August, 1866, Isaac Richmond and his brother George W. Richmond were actively engaged in getting up an organization called the Dallas Oil Company, to operate in the oil business, in Wood county, West Virginia; that Isaac Richmond presented ed to Wilson an oil lease or article of agreement, which recited, substantially, what follows: The undersigned agree to become stock holders in a property located on White oak, close to the Great Hope, Barles and other's wells. This lot is well located for boring purposes, and contains over one and a half-acres. It has a good ""ten horse power portable engine, engine house and shanty furnished, lot of boring tools, blacksmith tools, 500 feet of tubing with pump and well 382 feet, with a 30 barrel tank, with several barrels of oil. The machinery, well, all in good condition; the lease runs for fifteen years. The whole stock is divided into twenty shares of eqnal value, each share is put at a cost of three hundred and thirty-five dollars ($335) per share. Should the Company elect to bore another well, it is hereby understood that Blair & Gibbens arc not to be assessed in pumping the oil, and in all other expenses they bear their proportion of the expenses. We can take this property and stock it at pleasure, for a sum vastly exceeding this cost. Money is to be paid when subscribed: That Isaac Richmond stated to Wilson that the well was a thirty barrel well, that he had seen it run a thirty barrel tank full per day, and he solicited Wilson to go into the oil lease business, but Wilson) refused to do so, till Isaac Richmond told him, that if he did go into the business, he should not loose anything; that the law required them to make up a full company; that he, Richmond, wanted Wilson's name to help fill up the company; that it was understood that Wilson had not money in hand to the amount of any material part of the shares. And thai Wilson relying upon Isaac Richmond's representations as true, not himself having money, made and signed the note to Kimmins who was the secretary of the Dallas Oil Company, then organized, (notes being required to be given, when money was not paid for shares,) for one share of stock so taken: That Wilson was induced to enter into the contract and make the note, by reason of Isaac Richmond's representations; and that these were all false: That Kimmins and George W. Richmond were long ago advised of the foregoing facts: And that there was a total want and failure of the conditions of the contract, to the full amount of the note, as of the time when it was made, and always since; for that the well was not a thirty barrel well, that it had never run a thirty barrel tank full in a day, but that it was al-~ most a total failure and wholly worthless; and that the implements were of no value otherwise than in a good oil well: And Wilson pleaded thirdly, inserting instead of the name of Isaae Richmond, that of George W. Richmond, otherwise substantially the same facts as in the second plea.

Each of the last two pleas was verified by the affidavit of Wilson that the matters set forth in the plea were true, as to his knowledge, information and belief.

To each of the three pleas Kimmins replied generally

Then was atrial before a jury and a verdict for Kimmins for the use of G. W. Richmond. Wilson moved for a new trial, which was refused, and he excepted, and the facts in part, and evidence in part, were certified.

As appears by the record, the agreement recited in the.second pica was signed by Blair & Gibbens, with four shared, of the aggregate value of §1340, written opposite their names and by George W. Richmond, Isaac Richmond, A. R. Kimmins, James T. Wilson, Daniel Dague and eight other persons, with one share of the value of $335, written opposite the name of each.

The evidence proves the following facts: G. W. Richmond, who resided in Clarksburg, West Virginia, arranged with Blair & Gibbens, with reference to the lease mentioned in the agreement, and Avith a firm which, under a contract with Blair & Gibbens, had sunk the well then in operation and owned the property, for the purchase of their interest, engine and other property mentioned in the agreement, upon the condition that at or before the expiration of sixty days, a company should be formed to take the lease and other property upon the terms suggested. The price of the lease does not clearly appear; but the price asked for the well, engine and other property was $3500. The agreement was signed by Blair & Gibbens, who took four shares of stock, and by George W. Richmond, who took one share; and then it was sent by George W. Richmond to his brother, Isaac Richmond, in Marshall county, with the request that, if he had the time, he would obtain the desired number of subscribers; or if not, that he would hand the papers to some one in his neighborhood who would attend to it. A sufficient number of subscribers having been secured, on the Gth day of September, 18G6, the Company was formed and organized called the Dallas Oil Company and Dague was elected president and Kimmins, secretary and treasurer. A part of the subscribers paid their subscriptions before the organization; but, under an agreement with the other parties, on the same day,...