Bartlett v. Bank of Mannington.
| Decision Date | 07 December 1915 |
| Docket Number | No. 2664.,2664. |
| Citation | 77 W.Va. 329 |
| Parties | Bartlett v. Bank of Mannington. |
| Court | West Virginia Supreme Court |
Money paid by one person on the debt of another, at his request, or by his procurement, may be recovered from him, in assumpsit on the common count for money paid, laid out and expended for his use and benefit and at his request, and the method or form of the transaction is immaterial, if it amounts to payment in law or is so treated by the creditor, (p. 340).
Errors in the rulings of the trial court upon the admission and rejection of evidence are deemed to have been waived, if they are not made grounds of the motion for a new trial, nor subjects of special bills of exception, showing the evidence and the rulings of the court thereon, (p. 340).
To obtain a review of the action of the trial court, in refusing to give certain instructions at the instance of the complaining party, the record of the cause must show, by bills of exceptions or otherwise, what instructions were given at his instance, so as to enable the appellate court to determine whether any error has been committed in the rulings. In this instance, as in most others, there is a presumption in favor of the correctness of the rulings of the trial court, which prevails unless rebutted by the record, (p. 340).
A bill of exceptions, showing the giving of one instruction for the plaintiff and the refusal of five asked for by the defendant, without more, is deemed and held not to disclose all the rulings of the court upon the requests for instructions, (p. 340).
Judicial admissions made in one case are evidence in another, but are not conclusive, and the effect thereof may be avoided by proof of their having been made under a misapprehension of fact. (p. 343).
Issues dependent upon conflicting oral evidence and uncontroled by any admitted or clearly established facts, fall within the province of the jury, and its finding thereon cannot be disturbed by the court, (p. 343).
One who has wrought injury to himself by a misrepresentation which caused another to do the injurious act is estopped from complaining of such act, in an action brought by such other person against him. (p. 344).
The time laid in a declaration in assumpsit, containing only the common counts, is immaterial and may be departed from in the proof, (p. 344).
(Lynch and Mason, Judges, absent.)
Error to Circuit Court, Marion County. Action by Fred "W. Bartlett against the Bank of Mannington. Judgment for plaintiff, and defendant brings error.
Affirmed.
L. S. Schwenck, M. M. Neely and John A. Howard, for plaintiff in error.
W. S. Meredith, Tusca Morris, W. M. Hess, E. F. Morgan and Harry Shaw, for defendant in error.
poffenbarger, president:
Claiming to have been a surety of the defendant for a certain debt, amounting to $6,500.00 and evidenced by a certain promissory note, the plaintiff obtained a verdict and judgment for the sum of $5,417.18, as for money paid by him, as such surety, on said debt. The principal assignments of error assume insufficiency of the evidence to sustain the verdict.
The history of the debt is somewhat lengthy and is involved in more or less controversy. Its origin dates back, at least, to April 7, 1902, but the plaintiff, Bartlett did not become connected with it until January 21, 1905. It was originally a part of a debt of $12,500.00, which was divided into two parts, in July 1904. It seems to have grown out of transactions between the Bank of Mannington and the Mannington Glass Works Co., resulting at one time, in indebtedness of the latter to the former, in various forms, amounting in the aggregate to more than the entire capital stock of the bank. That the $12,500.00 went to the Glass Works Co., is clearly indicated by the evidence, but the money was obtained from the First National Bank of Mannington, as the proceeds of a note, dated April 7, 1902, in which the maker was the Bank of Mannington and on which the Mannington Glass Works Co. and one Virgil T. Clayton, owner of nine tenths of the capital stock of said company, were indorsers. In that form, it was renewed a number of times. On January 2, 1904, however, its form was changed. Clayton became the maker and the Bank of Mannington the indorser. In this altered form, it was again renewed, April 2, 1904. In July 1904, it was divided into two notes, one for $6,000.00 and the other for $6,500.00, in each of which the Bank of Mannington was the maker. In Oct. 1904, these notes were renewed, with the Bank of Mannington as maker of the $6,000.00 note, and E. J. Thomas as the maker of the $6,500.00 note and the Bank of Mannington indorser thereof. With each of them, there was deposited a collateral note of V. T. Clayton for an equal amount. On January 21, 1905, the Bank of Mannington renewed the $6,000.00 note. At or about the same time, E. J. Thomas and F. W. Bartlett became the makers of the $6,-500.00 note, and the Bank of Mannington indorser. It was dated January 21, 1905, and substituted for the note for the same amount, made by Thomas, October 21, 1904. After further renewals, the Bank of Mannington paid the $6,000.00 note, August 21, 1905. The $6,500.00 note, due April 21, 1905, was not then renewed. No provision was made for it. until April 17, 1908, when it, with the accumulated interest, amounted to $7,984.71. At that time, Thomas and Bartlett executed their note for $7,500.00 which the Bank of Manning- ton indorsed. As provision for the residue of the debt, Bartlett made his note to Thomas which was indorsed by the latter and the Bank of Mannington. These notes were renewed Sept, 28, 1908, the smaller one for a larger amount, so as to include the interest. They were again renewed Nov. 21, 1908, and the interest added to the smaller one. In this manner, they were carried along until March 4, 1909, when Bartlett executed his note for $7,500.00 which S. A. Hendrickson, his mother, and the Bank of Mannington indorsed, and she made her note for $725.84, the balance of the debt which Bartlett and the bank indorsed. These, together with a $500.00 debt of Bartlett's added, July 2, 1909, were carried along, and the interest paid by Bartlett, until July 29, 1910, when he paid on account thereof, $3,225.84, reducing the amount to $5,000.00, for which he executed his note, with S. A. Hendrickson and the Bank of Mannington as indorsers. This was renewed from time to time, until Jan. 18, 1912, Bartlett paying the interest. The payments so made, with interest thereon, constitute the items of his bill of particulars, filed with his declaration asserting right of recovery on the common counts in assumpsit.
Though, in its inception, the debt was admittedly prima facie that of the Bank of Mannington, it is insisted that, in reality, it was the debt of the Mannington Glass Works Co. or Clayton, and that, if Bartlett has any right of recovery, it is against one of them. If this position is not tenable, then it is said E. J. Thomas, Bartlett's co-maker, assumed the debt and made it his, before Bartlett became a party to the note and that, if he is a mere surety, his right of recovery is against Thomas. If this ground of defense should prove untenable, then it is urged that Bartlett assumed the debt and made it his own, in consideration of the assignment to him of 139 shares of the capital stock of the Mannington Glass Works Co., 39 of which had been held as collateral security for the note, and 100 of which Thomas assigned to him. Finally, it is urged that he is estopped by his conduct from asserting any right against the bank.
The first ground of defense has little or no foundation in the record. No doubt the Mannington Glass Works Co. was the ultimate and final beneficiary of the money borrowed of the First National Bank of Mannington, but the loan was made to the Bank of Mannington, on its note, and not to the Glass Works Co. With that transaction, Bartlett had no connection whatever, and, in so far as Thomas took part in it, he acted as cashier of the Bank of Mannington, and he was not a formal party to it in either his individual or his official capacity. The defendant bank according to the evidence, had previously loaned the Glass Works Co., or Clayton, or both, an equal amount of money, or subsequently made such a loan, but, as to this particular money or transaction, it became the debtor of the First National Bank bf Mannington. The exigency which occasioned the application for the loan, or the disposition of the money, after it was obtained, are alike immaterial.
The date of Thomas' alleged assumption of the $6,500.00 note, as a part of the $12,500.00 debt, was December, 1904. When the note was first divided, in July 1904, the two notes were made by the Bank of Mannington. When they became due in October 1904, Thomas became the maker of the $6,-500.00 note, but it is not claimed he then assumed payment thereof. He denies that he ever did so. He had been the cashier of the bank for several years. By reason of transactions with the Mannington Glass Works Co., and other concerns the bank's financial condition had become very bad, and, in September 1904, its board of directors began an investigation which continued for some time and resulted in the adoption of strenuous measures against the cashier and some of the directors, for restoration or reimbursement of the bank, on account of bad loans made. Very large amounts were charged to Thomas, on this ground, and he was required to secure them by a deed of trust covering...
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