D. E. Cox v. D. L. Davis et at.

• Decision Date: 17 February 1920
• Citation: 85 W.Va. 604
• Parties: D. E. Cox v. D. L. Davis et at.
• Court: West Virginia Supreme Court

85 W.Va. 604

D. E. Cox

v.D. L. Davis et at.

Supreme Court of Appeals of West Virginia.

Submitted February 10, 1920.

Decided February 17, 1920.

1. Contracts Gratuitous Service Not Sufficient Consideration

for Subsequent Promise to Pay Therefor.

Services rendered and benefits conferred, gratuitously do not constitute a sufficient consideration for a subsequent promise to pay therefor, whether such promise be merely verbal or written. (p. 606).

2. Sake No Obligation for Gratuitous Services Without an

Antecendent or Contemporaneous Promise Under Which the Services Were Rendered.

Services rendered and benefits conferred, under circumstances rendering lack of expectation to be compensated therefor highly probable, impose no obligation to make such compensation, in the absence of proof of an antecedent or contemporaneous promise thereof, under which the services were rendered or the benefits conferred. (p. 606).

3. Same Work and Labor Promise to Pay for Board and a

Store Account is Not Implied Between Closely Related Families; Written Promise by Owner of Realty to Pay one Benefitted its use for Store Account Made at End of Their Relation is Without Consideration.

The law raises no implied promise to pay for board and a small amount of merchandise, or either of them, in the case of residence of two closely related families, in a dwelling house owned by the head of one of them, while the head of the other conducts a mercantile business in another building also owned by the former, no rent being paid in either case, and there is a general mingling of services and benefits, between the two families, in both the home and the business, in the absence of proof of any antecedent or contemporaneous agreement, intent or purpose to have an accounting between the parties; and a written promise by the owner of the real estate, to pay to the other party compensation for board and a store account, made at the termination of the relation between them, is void for lack of consideration.(p. 606).

Appeal from Circuit Court, Gilmer County.

Bill to enforce vendor's lien by D. E. Cox against D. L. Davis and others. From a decree dismissing the bill, plaintiff appeals; D. L. Davis being sole appellee.

Reversed; decree for plaintiff.

J. Ramsey and C. M. Bennett, for appellant. R. F. Kidd and L. II. Barnett, for appellee.

PoFFENBARGER, JUDGE:

The decree now under review dismissed a bill filed for enforcement of a vendor's lien, the debtor having denied liability for the debt and right in the creditor to sell the property for satisfaction thereof.

The defense is founded upon a claim or contention in the nature of a defeasance, it being insisted that the note secured by the lien was never to be paid, but was to be satisfied or defeated by a paper executed by the payee thereof, shortly before its date, by which she agreed that a board bill and store account, aggregating a sum equal to the note, should be set off against it. Regarding the two transactions, execution of this paper and of the note and deed, as constituent elements of a single larger one, the trial court sustained the contention of the defendants.

This suit was brought by the assignee of the note and he took it about ten months after the date of its maturity. He brought his suit against the assignor as well as the maker of the note and grantee in the deed. The latter disclaims any interest in the property as well as ultimate liability for the debt. In the entire transaction, he claims to have represented his brother who is the son-in-law of the payee, although he took the conveyance of the property and executed the note in his own name.

The property is a piece of land, containing eleven acres and situated at Cox's Mills in Gilmer County. At and before the date of the note and deed, a dwelling house and a store building stood on it. In October, 1905, Mary A. Nicholson, the payee of the note, purchased it from Homer Mason who seems then to have been conducting a store in the store building. At or about the same time, her son-in-law, Zack Davis, or he and his brother, D. L. Davis, purchased Mason's stock of goods and mercantile business and thereafter carried on a mercantile business in that building. Just prior to these transactions, Mary A. Nicholson, while living at a place called Buck Horn, had lost her house and furniture by fire. After the fire, she and her family seem to have lived for a short time with Zack Davis on Leading Creek. When the Mason property was purchased by her, she and Zack both moved into the house situated on it, with their families, and lived there together for about eight months, at the expiration of which period Mrs. Nicholson conveyed the property to D. L. Davis, in consideration of $1000.00, of which $50.00 was paid and the balance represented by four notes, one for $150.00, two for $250.00 each, and another for $300.00, secured by a vendor's lien on the property. The theory of the defense is that Zack Davis was the real purchaser, but that the transaction was put in the name of D. L. Davis, because Mrs. Nicholson's husband would not join her in a deed to Zack; and also that, in point of fact, the purchase money actually to be paid was only $700.00, but it was necessary to make it appear to be $1000.00, in order to secure execution of the deed by the husband. Hence, the deed recites such...