Ballengee v. Whitlock

• Decision Date: 10 March 1953
• Docket Number: No. 10483,10483
• Citation: 138 W.Va. 58,74 S.E.2d 780
• Court: West Virginia Supreme Court
• Parties: BALLENGEE, v. WHITLOCK et al.

Page 780

74 S.E.2d 780

138 W.Va. 58

BALLENGEE, v. WHITLOCK et al.

No. 10483.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 27, 1953.

Decided March 10, 1953.

Syllabus by the Court.

1. A jury verdict, based on an unenforceable contract, should be received by the court; but if it should appear that the same is not supported by the evidence or justified by law, such verdict should be set aside.

2. It is reversible error to refuse a peremptory instruction when such instruction is supported by undisputed evidence and the issues of law and fact on which such instruction is predicated are controlling.

3. "The giving of instructions, having no basis or foundation in the evidence in the case in which they are given, is prejudicial and constitutes reversible error." Point 6, Syllabus, Kuykendall v. Fisher, 61 W.Va. 87 [56 S.E. 48, 8 L.R.A.,N.S., 94].

4. A vendee in an unenforceable contract for the sale of land may recover the money voluntarily paid by him if: (a) There has been a mutual abandonment; or (b) if the vendor abrogates or otherwise refuses to perform such contract according to its terms.

Clay S. Crouse and Scherer, Bowers & File, Beckley, for plaintiff in error.

Harold B. Eagle, Hinton, for defendants in error.

LOVINS, Judge.

This is a proceeding by notice of motion for judgment brought in the Circuit Court of Raleigh County by Mrs. H.H. Ballengee against James C. Whitlock and Beulah Whitlock to recover the sum of $2300. The gravamen of the action is that the plaintiff had paid the defendants the sum of $2300 as part purchase price of a house and tract of land situate in Summers County, West Virginia.

The jury made two reports to the court, each purporting to be a verdict. The last report made by the jury was treated as a verdict and a judgment of nil capiat was entered thereon. The plaintiff prosecutes this writ of error.

The plaintiff in her notice of motion for judgment substantially describes her cause of action as arising upon an implied contract for money had and received by the defendants. The defendants filed a counter affidavit denying the right of the plaintiff to recover anything and likewise pleaded the general issue orally, which plea was accepted without objection and made a part of the record. Defendants also filed a special plea which is entitled a plea of recoupment, but is really a plea of set-off and counter claim, as will be hereinafter shown.

In their plea of set-off and counter claim, the defendants assert they are entitled to recover $3200, balance due on purchase price of the house, land and personal property and an additional sum of $1167.80, which is made up of interest on the balance of $3200 from November 17, 1948 to May 21, 1951, taxes levied on the property, insurance premiums for insurance on the house and the cost of repairs and improvements. Defendants also, in their plea of set-off and counter claim, give the details of the purchase and sale of the house and furniture at the price of $5500 and admit that the plaintiff has paid them the sum of $2300 on the purchase price, and prayed judgment for the sum of $4367.80.

The plaintiff then filed a writing entitled, "Plaintiffs' Plea of the Statute of Frauds to the Defendants' Plea of Recoupment Filed Herein". The writing so filed by the plaintiff is in fact a special replication alleging that the contract described in the defendants' plea of set-off and counter claim was an oral contract for the sale of the land and is therefore unenforceable under the applicable statute.

According to the plaintiff's testimony, which is corroborated by her husband, H.H. Ballengee, the plaintiff had a conversation with defendants in the kitchen of the Willis Hotel at Beckley, West Virginia. The result of this conversation was that the plaintiff agreed to purchase, and defendants agreed to sell, a house and tract of land situate in Summers County, West Virginia, for the price of $3500, which did not include the furniture in the house. Plaintiff's husband, according to his evidence, contemplated selling another piece of real estate situate near Beckley and buying the land and house of defendants. The husband testified that it was not desired to purchase the furniture at any price.

The defendants testified, in which they are corroborated by their son and the mother of the female defendant, that the oral contract between the plaintiff and defendants was that the plaintiff was to purchase the house, lot and furniture for the sum of $5500. The defendants testified that the contract was made in a room which they rented from the plaintiff. Plaintiff and defendants both agree that the contract of sale and purchase was oral.

Pursuant to whatever understanding was had, the plaintiff on November 17, 1948, gave the defendant a check for $2160 marked, "For payment on house & lots." Thereafter, on or about the 21st day of February, 1949, plaintiff paid the female defendant the sum of $140, took a receipt reading as follows: "Feb. 21-49 Received of Mrs. H.H. Ballengee $140 One Hundred Forty and 00/100 payment on house and lot. Mrs. J.C. Whitlock."

The male defendant testified that he had not refused to give the plaintiff a deed for the property, and, in substance, said that about a month before this action was started, he had a conversation with plaintiff. In that conversation the plaintiff asserted that there was a balance of about $1200 due on the property. The male defendant at that time denied that the amount of the balance due on the property, as asserted by plaintiff, was correct, but that if the plaintiff wanted to "go on and take the place, to get $3500.00 to me and I would make her a deed the next day to the place, ***." At the time of this conversation, the plaintiff objected, noting that Whitlock had raised the price claimed by him in the sum of $300. It will thus be seen that the plaintiff's testimony and that of the defendants are in direct conflict, both as to subject matter of the contract and the purchase price.

The plaintiff never had possession of the real estate or the household furniture. Defendants, at all times since the inception of the negotiation between them, were in possession; but testify that they were holding it for the plaintiff.

The court refused a peremptory instruction offered by the plaintiff, gave the plaintiff's Instruction Number 2 without objection and overruled defendants' objection to plaintiff's Instruction Number 3. The defendants tendered three instructions, two of which were refused and one given. Instruction Number C given by defendants, submitted to the jury the following questions: (a) whether the plaintiff and defendants entered into a contract to purchase real estate for the sum of $5500, (b) whether there was a meeting of the minds between the plaintiff and defendants, (c) whether the defendants were "ready, willing and able to fulfill the provisions of their contract with the plaintiff upon the plaintiff completing the payment of agreed purchase price ***", and directed that in the event they found for the defendants on the above questions, that the jury should return a verdict for the defendants and against the plaintiff.

The jury having heard the evidence, instructions and argument of counsel, retired to consider their verdict and, after a time, returned into court and requested that the instruction be re-read, which was done, and the jury again retired. After some time had elapsed, the jury returned into court and made the following report: "We, the jury, find for the defendants in the sum of $5500.00, less the sum of $2300.00, already paid by the plaintiff. (Signed) H. Wayne Mason, Foreman."

The court refused to receive the above report as a verdict and instructed the jury that under the instructions given by the court, they could not "return a verdict for any sums of money in favor of the defendants, but could return a verdict for the plaintiff for a sum of money or a verdict for the defendants ***." Thereupon, the court directed the jury to further re-consider the verdict. Apparently, the jury retired from the room and, after a time, returned into court with the following report: "We the jury find for the defendants. (Signed) H. Wayne Mason." The court received the last report as a verdict and entered the judgment herein complained of by plaintiff.

A number of errors are assigned by the plaintiff as grounds for reversal of the judgment of the trial court. We think, however, that the assignments of errors presents the following questions: (1) Was it error for the court to refuse to accept as a verdict the first report of the jury? (2) Is the plaintiff entitled to recover the money paid by her voluntarily? And, (3) Did the court err in refusing proper instruction and giving improper instructions?

Prior to discussing the questions above stated, we advert to what seems to be a misapprehension as to the special plea filed by defendants, entitled a Plea of Recoupment, and the replication filed by the plaintiff setting up the statute of frauds as a defense to the demands made by defendants in the special plea above mentioned.

The special plea filed by the defendants is actually a plea of set-off and counter claim. An examination of such special plea shows that the purpose is to recover a judgment over against plaintiff. No judgment over may be had by way of recoupment. Monongahela Tie & Lumber Co. v. Flannigan, 77 W.Va. 162, 165, 87 S.E. 161. See Clark's Cove Guano Co. v. Appling, 33 W.Va. 470, 10 S.E. 809; Case Mfg. Co. v. Sweeney, 47 W.Va. 638, 35 S.E. 853. For the functions and limitations of the plea of recoupment and that of set-off and counter claim, see Code, 56-5-4, 5, and 6; Logie v. Black, 24 W.Va. 1; Orrick & Son v. Dawson, 67 W.Va. 403, 68 S.E. 39; Bowling v. Walls, 72 W.Va. 638, 78 S.E. 791; West Virginia Pulp & Paper Co. v. Whitmore, 89 W.Va. 622, 109 S.E. 722; Williams Hardware Co. v. Phillips, 109 W.Va. 109, 153 S.E. 147. The special plea here...