Bank of White Sulphur Springs v. Lynch
| Decision Date | 20 March 1923 |
| Docket Number | 4727. |
| Citation | 116 S.E. 685,93 W.Va. 382 |
| Parties | BANK OF WHITE SULPHUR SPRINGS v. LYNCH. |
| Court | West Virginia Supreme Court |
submitted March 13, 1923.
Syllabus by the Court.
A principal is liable for the contract of his agent made within the scope of his authority.
Where a principal sends an agent to purchase a certain team of horses from the owner, and the latter agrees to sell the horses at a stipulated price, subject, however, to confirmation by the beneficiary of a trust lien upon the horses, who, being interviewed by the agent, agrees to the sale upon condition that the notes representing the purchase price be turned over to him in payment of his lien thereon, whereupon the agent with consent of the owner draws the notes payable to the trust lienor, which are taken by the agent to his principal who signs and delivers the same knowing why the notes are so payable, the agent is not acting in a dual capacity, but represents the purchaser alone.
Where the facts are undisputed, the question of agency arising therefrom should be determined by the court and not submitted to the jury.
Where the evidence plainly and decidedly preponderates in favor of a party, it is not error to instruct the jury to return a verdict for him. On a motion for a directed verdict the court should be guided by what its action would be if a verdict should be returned for the opposite party and a motion made to set aside the verdict.
Error to Circuit Court, Greenbrier County.
Action by the Bank of White Sulphur Springs against G. H. Lynch and others. Judgment for plaintiff, and named defendant brings error. Affirmed.
J. S McWhorter, of Lewisburg, for plaintiff in error.
Chas S. Dice, of Lewisburg, for defendant in error.
From a judgment for $214.40 rendered on the 20th of May, 1922, upon a directed verdict, defendant prosecutes this writ of error. The error relied upon for reversal is that the court, over defendant's objection, directed the jury to find a verdict for plaintiff. Defendant's brief and argument are based upon this assignment. The suit originated in the court of a justice of the peace, on two negotiable notes each for the sum of $100, the first dated May 18, 1921, and the second dated May 15, 1921, payable to plaintiff, signed by defendant, and indorsed by J. C. Myers; the first note becoming due on September 15, 1921, and the second on October 15, 1921, both of which notes were protested for nonpayment. A jury in the justice' court returned a verdict in favor of plaintiff, and an appeal to the circuit court was granted where the judgment com plained of was rendered. The defense is want of consideration and failure of consideration.
Defendant was engaged in fulfilling a contract with the Morgan Lumber Company for hauling certain logs and manufacturing them into lumber on the north fork of Anthony's creek in Greenbrier county. John Kessinger was the manager of the Morgan Lumber Company, and it became apparent to both Lynch and Kessinger that Lynch was in need of a team of horses in carrying out his lumber contract. Kessinger suggested that J. C. Myers, who was in the lumber business in that vicinity, and for whom he had formerly worked, had a team, known as the Myers team, which would be suitable for the work required, and Lynch sent Kessinger to see if the team could be purchased. The team at that time was at Wade's crossing, and was in the custody of Bowling-Harden Company. Lynch went to look at the team, and they were shown to him by John Andy Gun, and he concluded that they were suitable for his purpose, and authorized Kessinger to purchase them. Kessinger then went to Myers to see if the team could be purchased, and told Myers that Lynch would pay $500 for them in deferred payments; Myers informed Kessinger that the bank of White Sulphur, the plaintiff, held a deed of trust lien on the horses, and that he could not dispose of them without the assent of the beneficiary in the trust deed, and directed him to go to the bank and get its consent to the sale. Kessinger then proceeded to see the cashier of the bank, Hines, who agreed to release the lien upon the team if the money therefor, the $500, was paid to the bank, and directed that the notes be made payable to the bank. Kessinger then returned to Myers where the sale was concluded, and the notes were drawn up, which notes he then took to Lynch, who signed the same. It appears that Kessinger told Lynch when the notes were signed that he would personally bring the horses down from Wade's crossing on the following Monday. The notes were signed about the 7th or 8th of May, and postdated the 15th and 18th of that month in order that Lynch could meet them after his pay days, which seem to have been about the 10th of each month. Kessinger took the notes and delivered them to the bank, and on the following Monday went to Wade's crossing, where he found that the Bowling-Harden Company claimed a lien on the horses for a feed bill, and would not release them until the bill was paid. This he promptly reported to Lynch. It appears that this feed bill was released about two weeks thereafter according to Kessinger (Lynch says about the 1st of June), and a notice to that effect delivered to Lynch. Lynch complained to Kessinger that he needed the team, and testified that he told Kessinger a short time before the horses were released that unless he could get them promptly he would not need them, and would make other arrangements, and requested Kessinger to go to the bank and get his notes. Kessinger informed Lynch that he himself should go to see about his notes.
It appears that no complaint was made by Lynch about the delivery of the horses to either Myers or to the bank until on the 25th of July...
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