Bradley v. Kenova Trading Co.
| Decision Date | 06 February 1923 |
| Docket Number | 4698. |
| Citation | 115 S.E. 866,93 W.Va. 102 |
| Parties | BRADLEY v. KENOVA TRADING CO. |
| Court | West Virginia Supreme Court |
Submitted January 30, 1923.
Syllabus by the Court.
When a wife claims to have acquired indirectly the business and property formerly belonging to her husband, the burden of showing the bona fides of the transaction and that the same was purchased by her with her own money or separate estate is upon her, and being possessed of the evidence or having it within her power to prove the facts clearly and fully, her failure to do so constitutes a badge of fraud.
When in such a case the facts which would show the bona fides of the transaction have not been clearly and fully developed by the beneficiary, the court should not by instructions take the case from the jury but should submit the issues to them on the evidence adduced, and not to do so is error.
In such cases the court is never justified in directing a verdict, if on submission of the evidence to the jury the court would not be justified in setting aside their verdict if it should be contrary to the verdict directed.
Error to Circuit Court, Wayne County.
Action by Rhoda Bradley against the Kenova Trading Company. Judgment in the circuit court for plaintiff on appeal from a court of the justice of the peace, and defendant brings error. Reversed and remanded.
W. T. Lovins and Philip P. Gibson, both of Huntington, for plaintiff in error.
M. S Biddle, of Huntington, for defendant in error.
MILLER P.
In an action begun before a justice and tried on appeal the plaintiff recovered a verdict by peremptory instruction of the court, and the judgment thereon to which the present writ is directed was that she recover of defendant the sum of $231.13, the principal and interest sued for, and costs.
After the appeal was taken to the circuit court, the papers from the justice's court filed there appear to have been destroyed by fire by the burning of the court house. There was an effort made to supply these papers, but they are not complete. The copy of the justice's docket supplied shows the style of the case and that summons issued, but contains no record of or reference to the plaintiff's claim, nor to any pleading in the case. There was a motion in the circuit court to dismiss the action, on the ground that the transcript before the justice was not sufficient for the maintenance of the action; the defendant also moved the court to quash the summons and the return thereon. This action was not taken, however, until after defendant had at a former term appeared and filed his plea in writing. The summons, if ever supplied, is not in the record. Whether it was sufficient as a pleading or statement of plaintiff's claim does not appear. The court, however, overruled the motions to dismiss and quash, and refused at the same time to strike out defendant's plea in writing, and the parties went to trial on the case thus presented.
From the defendant's special plea and the evidence adduced on the trial, we learn that the plaintiff sued defendant for the sum of $215.00, the amount of her check, with interest, which she drew in favor of the defendant company as follows:
It is endorsed:
The defense sought to be interposed by the special plea, a very informal and uncertain pleading, in substance is that plaintiff's claim is fraudulent, because during the months of August and September, 1920, defendant received certain orders for goods from Adam Bradley Grocery Company, of Alphoeretta, Ky. amounting to $220.00, which had not been paid for, and was still due and unpaid; that Harris Bradley was the husband of plaintiff, and had operated a grocery store at Alphoeretta in the name of his infant son, a child of only seven years, as Adam Bradley Grocery Company, in which the said Rhoda Bradley clerked; that in the operation of said store Harris Bradley and Rhoda Bradley colluded together to defraud the creditors of said store, and that under certain executions held by the sheriff of Floyd County, Kentucky, the said Rhoda Bradley with funds not her sole and separate estate purchased said store in fraud of defendant; and that defendant would not have sold said goods to the Adam Bradley Grocery Company if it had known the true facts and circumstances, which were fraudulently represented by plaintiff.
The evidence shows that Mrs. Bradley, after purchasing the stock of goods for $200.00, appraised at $350.00, on January 18, 1921, which was paid in cash, took charge thereof, then located in a store building owned by her husband, and operated the business in about the same way it had been operated previously; and that on February 15th following, a little less than a month from the time she purchased the stock of goods, she drew the check in question and enclosed it in a letter written on the letter head formerly used by the Adam Bradley Grocery Company, but with the heading cut off, but unsigned by her, saying in substance, I am enclosing my check for $215.00, and requested defendant to ship her certain quantities of flour, lard and meat therein described. On receipt of this letter with the enclosure, defendant sent the check by a special messenger to the bank on which it was drawn, collected the money, and in place of sending plaintiff the goods ordered, credited the money on the account of Adam Bradley Grocery Company. The plaintiff being so notified made several demands for the goods or the return of the money, which was refused; and this suit followed with the result already indicated.
The theory of the defense as indicated by the plea filed and by the character of the evidence offered, seems to have been First, that Mrs. Bradley was interested in the store conducted in the name of Adam Bradley Grocery Company, and that she and her husband conspired and colluded together in the operation thereof in that name to defraud defendant and other creditors, justifying its appropriation of the proceeds of the check sued on to the old account unpaid; second, that the money with which plaintiff claimed to have purchased said stock of goods was...
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