Calwell v. Caperton's Adm'rs.
| Decision Date | 06 February 1886 |
| Citation | 27 W.Va. 397 |
| Court | West Virginia Supreme Court |
| Parties | Calwell v. Caperton's Adm'rs. |
tions, such settlement is conclusive upon the parties thereto as to the correctness thereof in the absence of accident, mistake or fraud in making the same. (p. 408.)
other for the balance found due to him upon such settlement is conclusive upon all the items of the included account in such settlement in the absence of accident, mistake or fraud in making the same. (p. 408.)
said grounds must distinctly allege and by clear and convincing evidence prove the particular facts, wherein such accident, mistake or fraud consists, and failing to do this, his bill will be dismissed, (p. 408.)
dent, mistake or fraud the burden of proof rests upon the plain- tiff to show the existence of the grounds alleged for re-opening the same, and not upon the defendant to show, that there is no error in such set tie in et. (p. 409.)
5. A case, in which a petition tiled in 1883, to re-open a settlement made in 1867, and another made in 1879, on the grounds of alleged mistakes therein, and to recover from the estate of a party to such settlement a large sum of money paid to it under such alleged mistakes, after all the parties engaged, concerned or interested in making the same, except the plaintiff, have been dead for many years was dismissed by the Appellate Court, (p. 417.)
J. W. Harris for appellants.
A. F. Mathews for appellee.
On October 3, 1883, Bedford Calwell filed his petition against the administrators of Allen T. Caperton, in the circuit court of Monroe county, to settle his estate and to provide for the payment of his debts; alleging in substance, that on August 11, 1879, his brother, Lewis M. Calwell, then dead, w7as indebted to Allen T. Caperton, also then dead, a certain amount evidenced by two bonds by which all previous dealings and transactions between them had been adjusted and closed; one for $473.58, dated and due on September 13, 1875, amounting on August 11, 1881, to the sum of $641.69, and another for $1,823.00, not bearing interest or payable until the interest tor which it was given, which had then accrued upon two White Sulphur bonds, transferred by Caperton to Calwell, which did not itself bear interest, should be collected by Calwell, or paid to any other person, and he filed, as parts of his petition copies of said bonds, marked respectively Exhibits "0." and "B;"that on August 11, 1879, he entered into an agreement in writing with one Stuart, a copy of which is made part of his petition as Exhibit "A.," whereby Stuart out of the proceeds of the sale of certain bonds transferred to him by petitioner, was to pay to the estate of Caperton $3,000.00 with interest from that date, when a certain bond should be collected; that this sum ot $3,000.00 thus provided to be paid for his brother, Lewis M. Calwell to Caperton's estate was the amount estimated to be due, in the absence of evidence of his indebtedness, and was deemed ample to pay all the liabilities of Lewis M. Calwell to Caperton's estate, and that this arrangement was made upon the express understanding and agreement, that before any part of the $3,000.00 should be paid the exact amount of this indebtedness should be ascertained, and that no more ot the $3,000.00 should be paid than was really due; that Stuart on August 11, 1881, without ascertaining the amount actually due, or taking up the evidences of such indebtedness, paid to the administrator of Caperton $3,360.00, the amount agreed by him to be so paid with its interest. He further alleged that in the calculation of interest which resulted in the execution of the bond ot $1,823.00, there was a mistake of $300.00, and that the same was endorsed by Caperton as a credit thereon, and that instead of $1,823.00, the bond should only have been executed for $1,523.00, and that the same did not become payable until March 31, 1882; that the amount due Caperton's estate on August 11, 1881 was only $2,018.42, and that the $3,360.00 paid by Stuart to Caperton's administrator overpaid the amount due from petitioner $1,251.58, which he prays may be repaid to him with interest from that date. Petitioner's Exhibits "A.," "B." and "C." are as follows:
Exhibit "A."
''Agreement, made this August 11, 1879, between Bedford Calwell, of the one part, and W. A. Stuart, of the other part, witnesseth:
That said Bedford Calwell, being the holder of a certain bond in the Singleton trust on the White Sulphur Springs property amounting to $5,000.00, with the accrued interest thereon, and with part of accrued interest on another bond in the hands of Dr. J. J. Moorman of the same amount ($5,000.00), the whole claim held by said Bedford Calwell amounting to $8,900.00 as of to-day, supposing that said Stuart's offsets just pay interest on said amount to this time, and the said Calwell has received of said Stuart $2,835.00 as of this day, and the said Stuart hereby binds himself to pay A. T. Caperton's estate $3,000.00 when said Singleton bond is collected, with interest from this date, to pay A. F. Mathews the amount of certain claims against Lewis M. Calwell on which said Stuart is garnished, amounting as is supposed to $1,065.00, and the balance to pay said Bedford Calwell on one, two, three and four years, with interest from date; and William B. Calwell is to hold said Singleton bond as collateral security, and when this obligation is discharged or other security given, said W. B. Calwell is to turn the said security over to said Stuart.
u Witness the following signatures:
"Bedford Calwell,
By W. B. Calwell. "W. A. Stuart."
Exhibit "B."
$1,823.00, beingthe difference of interest-his bonds which
I hold and the interest on the two first mortgages on White Sulphur which he passed to me heretofore (in the year 1864) in discharge of his own bonds referred to above; and I promise to pay the above amount ot $1,823.00 whenever the interest which has accrued upon the White Sulphur bonds referred to shall be collected by me or be paid to any other party.
Exhibit "C."
The administrators of Caperton answered the petition, referring to, and relying on the bond ot $1,823.00 as a correct ascertainment of the amount due from Lewis M. Calwell to Caperton, upon the transaction therein referred to; they further aver that the sum of $1,823.00 was due to their intestate on May 16, 1867, and bore interest from that date, and that the bond merely intended to indicate the time and and mode of payment and not to limit the effect of the ascertainment then made of the difference of their mutual accounts, and that the same was so treated by the parties thereto; that Lewis M. Calwell and Caperton being both dead, and the petitioner claiming the bonds assigned to Lewis M. Calwell by Caperton, and having assigned the same to Stuart on August 11, 1879, acting through his brother, William B. Calwell, who is also dead, entered into a written agreement with Stuart contained in Exhibit "A," who in accordance with its provision paid to James F. Patton, a former administrator of Caperton $3, '360.00, as stated in the petition, and that this sum was applied in payment of Caperton's debts. They deny that there was any mistake in the sum of $3,000.00 to the detriment of Bedford Calwell, or that the indebteness of Lewis M. Calwell was merely fixed at that sum in the absence of the bonds, in order to be certain that §3, 000.00 would be sufficient to discharge the indebtedness to Caperton's estate; they rely upon the fact that the whole transaction from the beginning to the death of Lewis M. Calwell) was in great part conducted by said William B. Calwell, also dead, who was thoroughly familiar with the whole subject, bad the mortgage bonds transferred by Caperton in his possession, drew up the the bond of $1,823.00 and who was one of the most practicable and astute business men in Greenbrier county. As all the parties to these transactions except the petitioner are dead, respondents can not tell howthe sum of $3,000.00 was arrived at, nor do they know, and therefore they can not admit or deny that the interest accrued upon the bonds assigned by Caperton bore interest, nor do they know whether the two bonds of $1,823.00 and $473.58, constituted all the indebtedness due from Lewis M Calwell to Caperton, but from their course of dealings they have reason to believe, and they thereupon deny that this was all that was due on August 11, 1879; and they deny that on that day, or at any time there was any understanding or agreement express or implied that any calculation was to be made, or any act done, to ascertain whether $8,000.00 was more or less than the amount due, tor the parties were fully informed as to the matter, and they deny that Stuart or any one else has by any mistake, miscalculation or inadvertence paid to Caperton's estate more than was due to it. To this answer the petitioner replied generally, and the cause was referred to a commissioner, witb instructions to enquire, ascertain and report:
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