Berry v. Colborn

• Decision Date: 20 April 1909
• Citation: 64 S.E. 636,65 W. Va. 493
• Parties: BERRY. v. COLBORN et al.
• Court: West Virginia Supreme Court

64 S.E. 636

(65 W. Va. 493)

BERRY.

v.COLBORN et al.

Supreme Court of Appeals of West Virginia.

April 20, 1909.

1. Appeal and Error (§ 987^*) — Review — Questions or Fact — Finding by Trial Court.

The rule giving great weight in the appellate court to the finding of the trial court on a question of fact lays no restraint upon the power of the former to ascertain by full and careful investigation and analysis of the evidence what the facts and circumstances are, and whether the general finding is consistent therewith.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3893-3896; Dec. Dig. § 987.*]

2. Evidence (§ 587*)—Sufficiency—Intent.

Flat contradiction in oral testimony as to intent and purpose, obscuring the truth and rendering it impossible to ascertain the same from such evidence with reasonable certainty, justifies resort to the circumstances as the safer guide, and their value and weight are determined by their intrinsic character and tendency to produce mental conviction rather than their number.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2436; Dec. Dig. § 587.*]

3. Joint Adventures (§ 4*)—Mutual Rights and Liabilities—Good Faith.

Two or more persons associated together in a joint enterprise, contemplating pecuniary gain and advantages, under an agreement to combine their energies or means, or both, for the accomplishment thereof, stand in a relation of confidence analogous to that subsisting between partners, and each must observe toward the others the utmost good faith.

[Ed. Note.—For other cases, see Joint Adventures, Dec. Dig. § 4.*]

4. Joint Adventures (§ 4*)—Mutual Rights and Liabilities—Secret Profit.

One of such persons cannot, consistently with equity and conscience, take to himself a secret profit produced by the joint effort or work, and all such gain must be accounted for in the settlement of the social business and distribution of assets if demanded of him.

[Ed. Note.—For other cases, see Joint Adventures, Cent. Dig. § 3; Dec. Dig. § 4.*]

(Syllabus by the Court.)

Appeal from Circuit Court, Marshall County.

Bill by J. W. Berry against C. B. Colborn and others. Decree for defendants, and complainant appeals. Reversed and remanded.

J. A. Ewing and C. C. Newman, for appellant.

J. B. Sommerville and Hubbard & Hubbard, for appellees.

POFFENBARGER, J. A bill filed in the circuit court of Ohio county by J. W. Berry to obtain a share in a commission of $10,000, which the Mound Coal Company agreed to pay as compensation for the negotiation of a lease of its coal property to one J. E. Hed-ding, with the privilege of purchasing the same at any time before January 1, 1911, for the sum of $150,000, was dismissed after a hearing on the merits, and Berry has appealed.

One Charles D. Ames was made a defendant as an associate of Hedding in the purchase. J. C. McKinley, president of the Mound Coal Company, was made a defendant in his individual capacity; he having been active in procuring the services of the agents. The real defendant, however, is C. B. Colborn, a real estate broker or agent, who claims the entire commission. Berry's bill proceeds upon the theory of his association as agent with Colborn. The lease was executed on the 19th day of October, 1905, and Colborn, admitting that he had been previously associated with Berry in an effort to sell the property, claims this relationship had ceased at the time of the execution of the lease, and denies the right of Berry to participate in the commission arising therefrom. On the 9th day of May, 1905, the coal company executed and delivered a written instrument by which it authorized Berry, one Simon Kline, and the firm of Colborn and Robinson to present a buyer for its property, and agreed to pay them a commission of $5,000 in case a "sale, trade, or deal or exchange" of the property should be made directly or indirectly through the instrumentality of the parties named. The right thus given was made exclusive until May 30, 1905. Under this arrangement, efforts to sell the property were made, in which Colborn seems to have been more active and influential than any of the others. He conducted the correspondence with parties in Pennsylvania and met them personally, while Berry furnished him information concerning the property, acquired from McKinley, which he calls "data, " and stood ready to take prospective purchasers through the mine and show them the qualities and advantages of the property. His claim is founded upon an alleged agreement with Colborn for a share in the commission and the rendition of services of the kind just indicated. While this right of sale was in force the agents consulted one another and were jointly interested. Notwithstanding the expiration, on May 30th, of the exclusive right of sale, this association and combination of effort continued without interruption until the 22d day of September, 1905, when the coal company, by letter, directed to Colborn and Colborn and Robinson, revoked the power given on the 9th day of May, 1905, and directed them to consider "all arrangements, negotiations and options canceled, effective at once." But, according to the testimony of McKinley, Berry, and others, the agents were verbally authorized on the next day, September 23, 1905, to continue their efforts to obtain a purchaser. The object ofthis seems to hare been to place beyond doubt or question the release or expiration of the exclusive right of sale originally given. Berry says he went to Colborn on the 23d day of September, and told him McKin-ley had authorized them to continue their efforts, and that Colborn agreed to do so. The latter had received the letter of revocation on that morning or the preceding evening, and, considering the matter at an end, had written a letter to some contemplated purchaser telling him so, but said he would destroy it and go on with the enterprise. This Colborn denies, but there was no cessation of his effort to dispose of the property. Admitting that Berry came in and saw him him after the notice of revocation had been received, he says the conversation between them was exactly contrary to what Berry says it was. He says Berry expressed the opinion that McKinley would let them go on, and he replied that he would have nothing more to do with it, and says he told Berry he had written a letter to a contemplated purchaser telling him to come and look at the property, and thereupon tore it up. His claim is that subsequently the coal company authorized him to negotiate a lease, not a sale, of it, and that, although Berry had been interested in the original agreement and effort to sell, he had no part or interest in the new agreement for commission to arise from the negotiation of the lease thereof. The verbal authorization to Berry to continue his effort to procure a purchaser was never withdrawn. McKinley says he had personal and telephone communication with him concerning the prospects of sale after the 23d day of September, 1905, and furnished him a revised statement or memorandum of the property, both real and personal, as a means of aiding him in his negotiations or efforts. A copy of this statement is exhibited with Mc-Kinley's deposition. He says, however, that about a week after the 23d of September he met Colborn, who stopped him and asked him what was being done about the Mound Coal Company, and, being informed that nothing had been done, asked the privilege of negotiating a lease of it, which was granted. He saw nothing more of Colborn until after October 19th, but had a conversation with him over the telephone on that date. He furnished Colborn no information, but talked with Berry from time to time over the telephone about the property. Even after that date, the date of the agreement of the lease, McKinley conversed with Berry about the property, but gave him no information as to what had been done. He explains this by saying they did not want to make the matter public, as they were in doubt about its consummation, and they had been requested by Colborn not to mention it to Berry or anybody else. Berry was specifically named as one of the parties to whom it was not to be communicated. Thrt McKinley kept Berry interested in the property after September 23d is further shown by the testimony of Harry R. Jungling, an employs. He says McKinley called Berry up frequently and talked to him about the disposition of the property. He also heard conversations between Colborn and McKinley, or rather heard McKinley talk to Colborn over the telephone, and tell the latter Berry knew nothing of the leasing of the property, and ask him if he did not think Berry would be "hot" and ought to have something out of the transaction. Hedding and Ames, accompanied by Colborn, came to look at the property on the 18th or 19th of October, and Berry took them through the mine. Hedding says he had come to Wheeling to look at the Glendale coal property, but Colborn told him it had been sold, and suggested that he go to Moundsville and look at the Mound Coal Company property. He says he did not inform Berry that he contemplated purchasing the property, but admits having asked him about the condition of the mine. He says he had had previous correspondence with Colborn concerning the Glendale property, in which the latter had merely referred to the Mound Coal Company property, and that on the 18th day of October Colborn had shown him the "data" of that property. He thinks it was not the last paper. McKinley had given to Berry; his recollection being that it was not so full and complete as that paper, but he was unable to point out any particular difference between them. Berry says Colborn called him up by telephone some time after September 23d and asked him for the memorandum, and he thereupon called for McKinley, who was not then in, but who on the next morning called him up, and, on being told that Colborn needed the paper, promised to prepare it immediately. On the next morning he received it by mail and...