Averill v. Boyer

• Decision Date: 09 May 1911
• Citation: 71 S.E. 707,69 W.Va. 396
• Parties: AVERILL. v. BOYER.
• Court: West Virginia Supreme Court

69 W.Va. 396

71 S.E. 707

AVERILL.

v.BOYER.

Supreme Court of Appeals of West Virginia.

May 9, 1911.

Rehearing Denied June 17, 1911.

(Syllabus by the Court.)

1. Justices of the Peace (§ 174^*)—Appeal— Pleading.

If plaintiff's account, filed with a justice of the peace, is sufficient to inform defendant of the nature and amount of his claim, it is not error for the trial court, on appeal, to refuse a motion by defendant to require plaintiff either to file a written declaration of his claim or to amend his bill of particulars.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. § 682; Dec. Dig. § 174.*]

2. Frauds, Statute of (§ 133*) —Oral Agreement—Exchange of Land—Recovery of Consideration.

The statute of frauds will not avail to defeat an action on a money demand growing out of, or constituting a part of the consideration for, an oral agreement for the exchange of lands, after deeds have passed.

[Ed. Note.—For other cases, see Frauds. Statute of, Cent. Dig. §§ 293-298; Dec. Dig. § 133.*]

Error to Circuit Court, Kanawha County.

Action by Mary J. Averill against Lula D. Boyer. Judgment for plaintiff, and defendant brings error. Affirmed.

W. S. Laidley, for plaintiff in error.

Everett E. Robertson and Littlepage, Cato & Bledsoe, for defendant in error.

WILLIAMS, P. This suit was originally brought before a justice of the peace to recover money on contract for exchange of lands. Appeal was taken from the judgment of the justice to the intermediate court of Kanawha county. The case was there tried by a jury, and a verdict and judgment obtained by plaintiff for $282.22. Defendant was denied a writ of error by the circuit court of Kanawha county, and then obtained one from this court. The verdict rests upon conflicting oral testimony, as to the weight of which the jury are the sole judges; and, unless it is contrary to the evidence, or clearly against the great weight of evidence, we cannot disturb it.

The testimony of plaintiff and of her witnesses tends to prove that about the last of August, 1906, plaintiff and defendant made an agreement whereby plaintiff was to convey a small farm, located at lock No. 5 in Kanawha county, and pay $2,500 cash to boot, in exchange for two houses and lots in the city of Charleston; that shortly after this agreement was made plaintiff ascertained that she could not pay the $2,500 cash, and the original contract was then modified to the extent that plaintiff was to exchange her farm for one of said houses and lots, the one on Morris street in the city of Charleston, and defendant was to pay plaintiff $1,000 boot in cash; that shortly after this the contract was again modified to the extent that plaintiff agreed to take from defendant a vacant lot in the city of Charleston in lieu of the $1,000 in cash; that at the time the contract was first made it was agreed that plaintiff should deliver immediate possession of her farm to defendant, and that defendant should collect the rent for the house on Morris street under a lease made by her to a certain tenant, prior to the first agreement, and should account to plaintiff for such rent from the 1st day of September, 1906, thereby giving plaintiff constructive possession of the house and lot; that plaintiff turned over possession of the farm to defendant the last of August, 1906, and that defendant immediately leased the same to one Harless by written contract for the period of one year, beginning January 1, 1907, and ending January 1, 1908, in consideration of one-half of the crops to be raised on the farm. It is proven that Harless took possession of the farm the 1st of September, 1906, but that he paid defendant no rent for the remainder of that year.. Defendant collected the rent from the Morris street property, $40 per month, from the 1st of September, 1906, until the 1st of June, 1907, and refused to account to plaintiff for it. This suit is to recover that rent money, less certain credits admitted to be due defendant.

There were no formal pleadings before the justice of the peace, but plaintiff's claimthen filed designates it as "nine months rent, beginning Sept. 1st, 1906, property, at $40.00 per month, $360.00." The account is credited with taxes, $54.78, and money paid out for obtaining release deeds, $25, thus leaving a balance of $280.22.

The court overruled defendant's motion to require plaintiff to file her declaration, or complaint, setting forth her cause of action, and defendant excepted. This was not error. The pleadings in a justice's court are informal, and may be either oral or in writing. Section 50, c. 50, Code 1906; O'Connor v. Dils, 43 W.Va. 54, 26 S. E. 354; White v. Emblem, 43 W. Va. 819, 28 S. E. 761; Poole v. Dilworth, 26 W. Va. 583. Subsection 8 of said section 50 is as follows: "In an action or defense founded upon an account, note, or other writing for the payment of money, it shall be sufficient for the party to deliver the account, note, or other writing to the justice and to state that there is due to him thereon from the adverse party a specific sum, which he claims to recover or set-off in the action." Mt'n. City Mill Co. v. Southern, 46 W. Va. 754, 34 S. E. 782. The trial judge did not abuse his discretion in refusing tc require plaintiff to file a declaration of her claim, or an amended bill of particulars; such amendment was not necessary to promote substantial justice. Section 169, c. 50, Code 1906; Drinkard v. Heptinstall, 55 W. Va. 320, 47 S. E. 72; Simpkins v. White, 43 W. Va. 125, 27 S....