Bowling v. Walls

• Decision Date: 24 June 1913
• Citation: 78 S.E. 791,72 W.Va. 638
• Parties: BOWLING v. WALLS.
• Court: West Virginia Supreme Court

78 S.E. 791

72 W.Va. 638

BOWLING v. WALLS.

Supreme Court of Appeals of West Virginia.

June 24, 1913

Submitted April 23, 1912.

Syllabus by the Court.

In an action on a note given as consideration for the sale of a store the maker of the note may claim recoupment for damages arising from breach by the vendor of his agreement made in the transaction of the sale not to go into the mercantile business as a competitor of the vendee for a stipulated period, though the agreement is contained in a separate writing.

In such an action the proof of the extent of the damages under the notice of recoupment need not be definite and specific; the jury may find the amount of damages necessary to compensate the injury proved by resorting to reasonable inferences from the facts, circumstances, and data furnished by the evidence.

Error to Circuit Court, Raleigh County.

Action by F. C. Bowling against D. B. Walls and others. Judgment for defendants, and plaintiff brings error. Affirmed

Farley & Ward, of Beckley, for plaintiff in error.

File & File, of Beckley, for defendant in error.

ROBINSON J.

Bowling sold his store to Walls and agreed to stay out of the mercantile business for a period of four months. Part of the consideration for the sale was represented by notes. The agreement not to compete was a part of the transaction of sale but was contained in a separate writing of the same date as that of the notes. When Bowling sued on one of the notes Walls claimed recoupment for breach of the agreement, and produced evidence at the trial tending to prove that within the four months Bowling went into the mercantile business in the name of his brother, as a competitor of Walls. The jury found for defendant, thus recognizing that Walls had been injured by Bowling's breach to the extent of the balance due on the note for which the suit was brought. Bowling seeks to reverse the judgment entered on this verdict.

Plaintiff submits that a breach of the agreement on his part does not afford matter of recoupment as against one of the notes given in the sale of the store. That damages for a breach of the agreement may be made matter of recoupment by defendant in this suit, we have no doubt. Those damages arise out of the very transaction which affords a basis of plaintiff's action. They grow out of the contract for the sale of the store, as fully as plaintiff's cause of action grows therefrom. The case comes clearly...