Consumer Credit Co. of Waynesburg v. Bowers

• Decision Date: 30 September 1958
• Docket Number: No. 10974,10974
• Court: West Virginia Supreme Court
• Parties: CONSUMER CREDIT COMPANY OF WAYNESBURG, a Corporation, v. Perry BOWERS and Dorothy Bowers.

Page 869

104 S.E.2d 869

143 W.Va. 748

CONSUMER CREDIT COMPANY OF WAYNESBURG, a Corporation, v. Perry BOWERS and Dorothy Bowers.

No. 10974.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 16, 1958.

Decided Sept. 30, 1958.

Syllabus by the Court.

1. 'Under Section 1, Article IV of the Constitution of the United States, the judgment or decree of a court of record of another state of the Union will be given full faith and credit in the courts of this State, unless it be clearly shown by pleading and proof that the court of such other state was without jurisdiction to render the same, or that it was procured through fraud.' Point 1, syllabus, Perkins v. Hall, 123 W.Va. 707 .

2. A parol agreement, based upon a legal consideration, to discharge the makers from a debt evidenced by a negotiable promissory note containing authority to any attorney to confess judgment thereon in favor of a holder thereof in event of default in the payment of the debt, cancels the authority for confession of a judgment, and a confession of judgment thereon subsequent to such agreement is a fraud in the procurement of such judgment in another state and such judgment is not entitled to full faith and credit in this State.

3. Anything which may be deemed in the judgment of the law as a benefit to the creditor, or a detriment to the debtor, however slight, is deemed sufficient to support an accord and satisfaction.

Baker & Armistead, Morgantown, John E. Baily, Waynesburg, for plaintiff in error.

Oakley J. Hopkins, Morgantown, for defendants in error.

DUCKER, Judge.

The plaintiff in error herein, Consumers Credit Company of Waynesburg, a Pennsylvania corporation, which was the plaintiff below, instituted an action in debt in the Circuit Court of Monongalia County against the defendants, defendants in error here, Perry Bowers and Dorothy Bowers, to recover on a judgment for $2,313.36 obtained on January 31, 1957, by the plaintiff against the defendants in the Court of Common Pleas of Greene County, Pennsylvania, which said judgment was rendered by said Court pursuant to a provision in a promissory note dated October 25, 1955, executed by defendants authorizing, in event of default in payment, any attorney to confess judgment against the makers in favor of the holder thereof, to which declaration in debt the defendants filed a plea alleging that in May or June, 1956, there was by agreement of the parties an accord and satisfaction of the debt and full satisfaction and discharge of the promises, undertakings and rights contained in said promissory note, and that the judgment obtained in Pennsylvania was therefore obtained by fraud and is void. Plaintiff demurred to the defendants' plea on two grounds, namely, that no consideration for a discharge of defendants' promises is alleged and that the judgment obtained by plaintiff in Pennsylvania is entitled to full faith and credit in this suit in West Virginia. The Circuit Court overruled the demurrer and thereupon plaintiff replied generally to defendants' plea and the issue was thereon joined. By agreement of the parties a pre-trial hearing before the court without a jury was submitted on the record thereof made, and by an order entered on December 20, 1957, judgment was rendered for the defendants, and it is to such judgment this writ of error is prosecuted.

The plaintiff introduced proof of the judgment rendered in its favor in the Pennsylvania court against the defendants, the record in the Pennsylvania court being, with minor details, substantially only an entry of the names and addresses of the makers as judgment debtors, the holder as the judgment creditor, the terms of the note and the power therein to confess judgment, and the amount due with interest and attorney's fee.

The defendants claimed they could prove the following facts: That in October, 1955, they executed the note sued on in Pennsylvania payable to the Carmichaels Used Car Company in order to enable one Mike Bond to purchase a house trailer on such credit of the defendants, that after a deliquency in the instalment payments due on the note Roy Hartley, an agent of the plaintiff, and Mike Bond came to Morgantown, West Virginia, to talk to defendants about the matter and at such time Hartley represented to the defendant, Dorothy Bowers, in the presence of a Mrs. Cole, a cleaning woman then present in the home of the defendants, that the 'transaction had been worked out by Mr. Hartley and Mr. Bond, and that he, Mr. Hartley, desired the Bowers to sign a release of the trailer', and that before the signing of the 'release', which in reality was a power of attorney to the plaintiff to have the title to the trailer transferred as plaintiff desired, Dorothy Bowers expressly asked Hartley if she signed the release, would she be out of the transaction, and that she was thereupon assured that 'it was completely settled and all she need to do was to sign it and she was free and released'. Both of the defendants signed the so-called release. Several months thereafter defendants were notified of this suit based upon the judgment in Pennsylvania as to which they were never served with process and of which they had no knowledge until notice of this suit in West Virginia.

The plaintiff claims that judgment should have been rendered in its favor for the amount sued for in the court below, and assigns that the Circuit Court erred (1) in finding that defendants could plead and assert accord and satisfaction of the original obligation on which the Pennsylvania judgment was rendered, (2) in holding that defendants had made a record that justified a judgment for defendants, (3) in holding that 'there may have been' a consideration for the alleged accord and satisfaction, and (4) in rendering judgment for the defendants.

The first and third assignments of error cover the two questions raised by plaintiff's demurrer to the defendants' plea, the second raises the sufficiency of the record, and the fourth depends upon the validity of one or more of the first three assignments, and the fourth assignment will require no specific discussion. The first and third assignments will to some extent be dealt with jointly.

The really controlling issue here is whether the Pennsylvania judgment is entitled to full faith and credit in West Virginia by virtue of the requirement of Section 1, Article IV of the Constitution of the United States. If the Pennsylvania judgment is entitled to full faith and credit here, then it is clear that all matters of defense, other than fraud in the procurement of the judgment, which could have been proven in the original suit in Pennsylvania cannot be availed of in the suit here on that foreign judgment. International Harvester Co. of America v. Solazo, 116 W.Va. 34, 178 S.E. 429; Perkins v. Hall, 123 W.Va. 707, 17 S.E.2d 795.

From the foregoing statement of the law two points arise,...