Atkinson v. Plumb

• Decision Date: 14 December 1898
• Citation: 32 S.E. 229,45 W.Va. 626
• Court: West Virginia Supreme Court
• Parties: ATKINSON v. PLUMB et al.

32 S.E. 229

(45 W.Va. 626)

ATKINSON

v.PLUMB et al.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1898.

Eqcitt—False Evidence.

The evidence of parties who attempt to impose on a court of equity by false statements, manufactured accounts, or like deceptive practices, should be rejected on the hearing of the cause.

(Syllabus by the Court.)

Appeal from circuit court, Wood county; A. I. Boreman, Judge.

Bill by W. F. Atkinson against D. S. Plumb and others. Decree for defendants, and plaintiff appeals. Reversed.

James A. Hutchinson and W. E. McDougle, for appellant.

R. B. Graham and Casto & Fleming, for appellees.

DENT, J. The history of this case is as tollows: Some time in the 70's, D. S. Plumb a mechanic, —a house painter and paper hanger—with little capital, but lots of pluck, as it afterwards turned out, began business as a green grocer in a little old frame building down on Ann street, in the city of Parkers-burg; his wife, Mary Jane Plumb, at about the same time running a restaurant, both working together for mutual benefit, —not an uncommon occurrence for husband and wife; not a thing to arouse unwarranted suspicion or to create alarm. Being good Baptists, they made the acquaintance of the plaintiff, W. F. Atkinson, who was also a good Baptist, and regular attendant at church. Brother Atkinson was a notary public, a real-estate agent, and money lender, and at one time was engaged with witness Piersol in running a tow show boat along the Mississippi river and its tributaries, —-Piersol running the boat, and Atkinson furnishing the means. This latter is cautiously revealed on cross-examination, and is a matter that should have its due weight in this controversy. Church acquaintance ripened into very warm friendship between the parties, and through the advice of Brother Atkinson Brother Plumb purchased a small stock of goods and groceries of one Stagg, who wanted to retire from business, situated on the corner of Market and Third streets. Brother Atkinson moved his safe and desk into Brother Plumb's store, and the latter went into business on a much larger scale. To procure money, or meet bills, notes were given to the bank, which, as Brother Plumb states, Brother Atkinson indorsed readily without the asking. The building in which the store was situated belonged to one Mum Jackson, but this probably had little effect on the transactions between the parties. Business was' moving along prosperously, at least seemingly, when Brother Atkinson suggested to Brother and Sister Plumb that they should buy a home, and put it in the wife's name. A suitable property, with the aid of Brother Atkinson, was found, and purchased for $1,-130, on credit, and to pay the purchase money, after some intermediate transactions, finally a loan was negotiated with the Traders' Building Association, and a deed of trust executed on the property to secure the same, originally $1,200, now about equaling the market value of the property, at least exclusive of the improvements afterwards put upon it. This is the property now in controversy. At length Brother Plumb's notes and bills began to mature rapidly, and he sometimes imbibed too freely, and became prostrated. Brother Atkinson continued to sign notes for discount, until, becoming a little weak in the knees, and Sister Plumb being in poor health, he induced her to make a will giving her property to Brother Plumb, that in case of her death he could be secured as indorser of notes. Creditors becoming importunate and threatening suit, Brother Atkinson's faith gave way entirely, and, becoming aroused and alarmed, he figured up Brother Plumb's liabilities, and found them much larger than had entered into his dreams. He at once insisted on Brother Plumb confessing judgment to him for $1,-516.18 as of July 8, 1891, and $14.10. There being already a judgment in favor of Shat-tuck & Jackson, this latter straw broke the camel's back, and the store was taken possession of and closed by a constable. A sale followed, and, although the services of the best auctioneer that could be found were procured, a stock of goods valued by Brother Plumb at $2,100 was sold out at about $500. Hats that he had paid $12 a dozen for were sold for 25 cents apiece, and fur caps, costing $15 to $18 per dozen, at 37 cents apiece. In Brother Plumb's own language: "They were literally thrown away. They piled them up In heaps, and asked a man what he would give for them." So, after the expenses of sale and prior execution were satisfied, nothing remained for Brother Atkinson, although his claim for rent, for which he was liable, and the judgment, amounted to about $2,000. Brother Atkinson asked Brother Plumb to get his wife to give him a deed of trust on her property to secure him, as she had always promised that he should not lose anything. Brother Plumb suggested the matter to Sister Plumb, and she was thunderstruck, and did not know what to make of it. After she recovered sufficiently, she said she would not give a deed of trust on her property if it was to her own father. Brother Atkinson, thus brought roundly to a standstill, was also thunderstruck, and rushed off to consult James Hutchinson, Esq., a learned attorney at law, since deceased, who, having listened to the tale of woe poured into his listening ears, advised an appeal to the courts, where justice is unerringly administered. A bill was filed, and the Plumbs summoned, and brotherly kindness no longer existed between the parties. The defendants employed another, as prominent and equally learned, attorney at law, to aid them in frustrating the unconscionable schemes of Atkinson to deprive Mrs. Plumb of the little home she had so long been in securing. Thus ensued the battle of legal giants. Day after day it was waged with ceaseless vigor and tireless energy. Witness after witness was placed on the witness stand, and examined, cross-examined, re-examined, and recross-examined, etc., amid the objections and cross objections, criminations and recriminations, and masterly debates of the learned counsel, duly interpolated in the depositions, and reported by the patient stenographer, until a large volume, consisting of 480 pages, at a cost for transcript of $162, and printing, $365.32, — about the size of Watterson's History of the Spanish War, —is produced of the story, complete in one volume, of the Plumb family in relation to Its dealings with W. P. Atkinson, for the consideration, information, and assistance of the court in determining which of the parties is the true aggressor against the other, that equal justice may be meted out without fear, favor, or affection. Mrs. Plumb, in her deposition, is made to detail her history, beginning way back in the 50's, when she was an unwedded maiden, in the sweet 'teens, teaching her first school in the state of New York, earning $40 per month for four months in the year. At this time she first met Plumb, who was in the blush of early manhood, engaged in business as clerk in a grocery store. They were mutually attracted towards each other, —a thing not of rare occurrence. An attachment followed, which, in 1857, was consummated by marriage. She then immediately began to keep an account against him, and loan him money, to be some time afterwards repaid to her in a home. She kept this up all throughout her married life, and throughout their various changes of location and fortune. The money so loaned was her early school money, and various sums she had received from her father and sister, and earnings on her farm. Although her source of income was inconsiderable, according to Plumb's statement, her pocketbook, like the widow's cruse of oil, was never empty. She always had money ready to loan to him, and he was always a willing borrower. Some time after marriage they moved to Indianapolis, then to Chicago, and just before the...