Clair v. Dickinson

• Decision Date: 21 June 1949
• Docket Number: No. 10085.,10085.
• Citation: 54 S.E.2d 828
• Parties: CLAIR et al. v. DICKINSON et al.
• Court: West Virginia Supreme Court

54 S.E.2d 828

CLAIR et al.

v.DICKINSON et al.

No. 10085.

Supreme Court of Appeals of West Virginia.

Submitted April 10, 1949.

Decided June 21, 1949.

Dissenting Opinion Aug. 29, 1949.

Supplemental Opinion Sept. 8, 1949.

T. J. Blair, Jr., and J. N. Berthy, Jr., sued John L. Dickinson and Gauley-Eagle Coal & Coke Company for partition of land. The second named defendant answered seeking specific performance of alleged agreement for a lease of coal lands and the first named defendant filed a cross-bill.

The Circuit Court of Nicholas County granted specific performance and the first named defendant appealed.

The Supreme Court of Appeals, Fox, J., reversed the decree and remanded cause on ground that no contract resulted because theminds of parties had not met on the alleged agreement for a lease.

Kenna, J., dissented.

Syllabus by the Court.

1.Where, from all the evidence and circumstances of the case, it appears that the parties to an agreement being negotiated between them intend that, as a condition precedent to its becoming binding upon them, it should be reduced to writing and signed by the parties, an oral agreement, though it covers all the terms of the proposed agreement, is not binding on the parties, until it is reduced to writing, and has been signed by all the parties thereto.

2. The specific performance of an oral agreement to sell real estate, or to lease the same for a term of more than one year, should not be decreed, except in cases where all the parties assent to all the terms of the agreement, and they are fully understood in the same way by each of them.

3. A clear showing of an oral agreement to sell real estate, or to lease the same for a term of more than one year, is a condition precedent to its specific enforcement, where such enforcement is sought by reason of alleged possession taken, money paid, or improvements made, in reliance thereon.

Jackson, Kelly, Morrison & Moxley, Charleston, Thomas B. Jackson, Charleston, W. L. Lee, Fayetteville, for appellants.

Wolverton & Callaghan, Richwood, Campbell, McClintic & James, Charleston, Mahan, White & Higgins, Fayetteville, Chas. E. Mahan, Fayetteville, for appellees.

FOX, Judge.

John L. Dickinson prosecutes this appeal from a decree of the Circuit Court of Nicholas County, entered on February 18, 1948, in a chancery cause then pending in said court, in which T. J. Blair, Jr. and J. N. Berthy, Jr. were plaintiffs, and John L. Dickinson and Gauley-Eagle Coal and Coke Company, a corporation, were defendants. Said appeal was granted by this Court on July 30, 1948. The parties to the suit will be hereafter referred to as "Dickinson", "Blair", "Berthy" and "Gauley-Eagle". J. R. Maust, the president of Gauley-Eagle, and who represented it in the negotiations here involved, will be referred to as "Maust".

On December 26, 1944, the Muddlety Coal and Land Company, a corporation, conveyed to Dickinson, Blair and Berthy, in equal interests, tracts of 9842.61 acres, 1260 acres, and 50 acres, all more or less, situated in Hamilton District of Nicholas County. On October 17, 1945 Joseph H. Baker, Jr. and wife, conveyed to the same parties, and in the same interests, a lot of.31 acres, adjoining one of the larger tracts; and on November 1, 1945 John Hicks conveyed to the same parties, and in like interests, an adjoining tract of 25 acres. In the conveyance made by the Muddlety Coal and Land Company aforesaid, there was reserved tracts of 92 acres and 30 acres. In plaintiffs' bill it is alleged that the plaintiffs and Dickinson conveyed to Strouds Creek & Muddlety Railroad Company, 2 tracts of 16.70 acres and.06 acres, and conveyed to the Baltimore & Ohio Railroad Company, with reversion provisions, a tract of 4.77 acres. It is also alleged that the tracts of land owned by plaintiffs and Dickinson aggregated 11, 000 acres, more or less, which was subject to an oil and gas lease covering 1484 acres thereof, and certain rights of way and easements, none of which are relevant to this controversy. It is admitted by all parties to this litigation that said lands are chiefly valuable for the minerals which may lie thereunder, the surface being wild and mountainous.

Soon after acquiring title to said lands, the owners sought to bring about the development of the minerals aforesaid, particularly the coal thereunder, and did so by endeavoring to lease portions thereof for coal mining purposes. In the summer and fall of 1945, Berthy began negotiations with his co-owners for the lease of 404 acres thereof for coal mining purposes, and on October 24, 1945, a written lease of that character, and for that acreage, was prepared and signed by Blair and Berthy, but was not signed by Dickinson. Dickinson became ill in August, 1945, went to Florida in December of that year, where he remained until April, 1946. In the meantime, Berthy had assigned his lease on the 404 acres to the defendant, Gauley-Eagle, and that company had begun stripping operations under said lease in November or December, 1945, and paid its first royalty to the lessor owners in January, 1946.

It appears that Dickinson was not satisfied with the lease of the 404 acres which Blair and Berthy had signed, but the record is not clear as to the nature of his objection thereto. However, he accepted, with reservations bearing on the form of the lease, payment of his share of the royalties accruing thereunder, until some time in 1947, when he refused to accept such payments until he could be assured that the coal for which royalty payments were offered had not been mined from land outside the 404 acres covered by the lease aforesaid, evidently fearing that his acceptance of such payments might prejudice his position in respect to the dispute which had by that time arisen over a lease on 4700 acres hereinafter to be dealt with. On his return from Florida to his home in Charleston, West Virginia, Dickinson visited the property in April, 1946. In the spring and summer of 1946, Gauley-Eagle was induced by Berthy to increase its investments and make plans for a tipple and the necessaryroads thereto on a stream called Laurel Fork, and at a point outside the 404 acre lease; and Gauley-Eagle interested the Baltimore & Ohio Railroad Company in building a spur or siding up Laurel Fork, the right of way therefor to be furthered by Dickinson, Blair and Berthy. This work stopped because one John G. Hoffstot claimed the right to interfere because of an asserted contract for the purchase of the surface of 398 acres, and certain coal therein, within the 11, 000 acre tract.

At this point another complication comes into the case. Prior to July, 1946, Dickinson, Blair and Berthy had been negotiating with John G. Hoffstot, aforesaid, for the sale of 398 acres of surface and the coal above an elevation of 2, 005 feet above sea level, supposed to be 197 acres of coal, situate within the boundaries of the 11, 000 acres; and Hoffstot claimed to have a binding and enforceable contract for its purchase. The matter went so far that a deed was prepared conveying said property to Hoffstot, which, if executed, would have conveyed said surface and coal to the said Hoffstot. Dickinson and Blair were willing to execute this writing, but Berthy refused to do so, allegedly because a right of way, necessary to other portions of the 11, 000 acres, had not been reserved in the proposed deed. Then, according to Berthy, he was asked by Dickinson and Blair to purchase the said 398 acres of surface, and the 197 acres of coal, at the same price as that which Hoffstot had been willing to pay therefor. Berthy was willing to make the said purchase on the terms proposed, and a deed was prepared which, if executed, would have conveyed the same to Berthy's assignee or nominee. This paper was executed by Blair and Berthy, but Dickinson refused to sign the same, and has always insisted, as he now insists, that he has never at any time agreed to sell said property to Berthy. In July, 1946, Hoffstot instituted his suit in equity in the District Court of the United States, for the Southern District of West Virginia, for the specific performance of his alleged agreement for the purchase of the 398 acres. Later, on July 29, 1946, it is claimed that an agreement was reached between Dickinson, Blair and Berthy concerning the sale to Berthy of the 398 acres, subject to the outcome of the Hoffstot suit, then pending, and a written collateral agreement was prepared evidencing that agreement; but which was never signed. According to Blair and Berthy, there was an oral agreement some forty days thereafter to convey the 398 acres to Berthy without any collateral agreement. Berthy, at different times, July 9, 1946, July 25, 1947, and August 11, 1947, tendered certified checks for what he says was the agreed price for the 398 acres, and his tender was in each instance refused. Hoffstot finally lost his suit, but the same was pending at the date of the alleged lease on the 4700 acres hereafter to be dealt with, and which covered both the 404 acres and the 398 acres.

In the fall and winter of 1946, and the winter and spring of 1947, steps were taken to secure rights of way for the Laurel Fork spur, a contract was let for construction thereof, and it is contended some work was done in that connection outside the 404 acre lease. Berthy urged Gauley-Eagle to build roads to what is called the Muddlety Front, but it refused to do so until it had the assurance that the railroad company would have rights of way for loading facilities at that point. On May 8, 1947, Dickinson, Blair and Berthy conveyed to the Baltimore & Ohio Railroad Company such rights of way, being a strip of land 67 feet in width containing 4.77 acres. Following this deed Gauley-Eagle began extending its road to the Muddlety Front, to move its tipple from Beaver Creek to the new site on the railroad right of way aforesaid.

It was after the conveyance of May 8, 1947, that Gauley-Eagle began to insist on a coal mining lease on...