Deitz v. High

• Decision Date: 22 September 1921
• Parties: DEITZ. v. HIGH.
• Court: Virginia Supreme Court

109 S.E. 215

DEITZ.

v.HIGH.

Supreme Court of Appeals of Virginia.

Sept. 22, 1921.

Error to Circuit Court, Tazewell County.

Interpleader proceedings by C. G. High against William P. Deitz, asserting a claim to property levied on by the latter as belonging to Samuel G. Walker. Judgment for plaintiff in the interpleader, and defendant brings error. Affirmed.

Sexton & Roberts, of Bluefield, W. Va., for plaintiff in error.

R. O. Crockett, of Tazewell, for defendant in error.

BURKS, J. This is a contest over certain personal property alleged to have been the property of Samuel G. Walker. An execution in favor of Deitz. against Walker was levied on the property, and it was claimed by the defendant in error, C. G. High. In an interpleader proceeding instituted by High, the title to the property was tried before a jury, who found in favor of High. Judgment was entered in his favor, and to that judgment a writ of error was awarded.

The property was levied on in the Pocahontas Inn, at Pocahontas, Va., in October and November, 191S. Prior to coming to Pocahontas, Walker and High had been engaged together in the retail liquor business at various points in West Virginia for about 12 years. When prohibition went into effect in that state, they came to Pocahontas together, and Walker purchased the Pocahontas Inn building. The defendant in error, High, testified as to what took place thereafter as follows:

"That a corporation was organized under the name of Pocahontas Inn Company, Incorporated, and it conducted both a hotel and retail liquor business, the retail liquor business being first conducted in the hotel or Pocahontas Inn building, and later in a new brick building erected by Sam G. Walker, adjoining the said Inn building, and on the same lot; that he was interested as a stockholder in the Pocahontas Inn Company, Incorporated; that Sam G. Walker was also interested as a stockholder in said Pocahontas Inn Company, Incorporated; that he and Sam G. Walker had charge of the retail liquor business conducted by Pocahontas Inn Company, Incorporated, and that he, a part of the time, prior to the fire of February. 1915, partly destroying the Pocahontas Inn, had charge of the hotel conducted by Pocahontas Inn Company, Incorporated; that some time thereafter a new corporation was organized and chartered under the name of Sam G. Walker & Co., Incorporated, of which he was a stockholder and Sam G. Walker was a stockholder, and of which he and the said Sam G. Walker were in charge; that thereafter the retail liquor business which had been formerly conducted by Pocahontas Inn Company, Incorporated, was conducted by Sam G. Walker & Co., Incorporated; that during the early part of the year 1915 the Pocahontas Inn building was partly destroyed by fire, and that Sam G. Walker & Co., Incorporated, suffered considerable loss therefrom by reason of the fact that it had large quantities of liquor stored therein; that the said Sam G. Walker, by reason of the said loss and the failure to have his insurance adjusted promptly, became hard up for money: that the said firm of Sam G. Walker & Co., Incorporated, became involved by reason of its loss by said fire and the failure to have its insurance promptly adjusted, and it became necessary for some one to advance to said Sam G. Walker & Co., Incorporated, funds to carry on its business; that witness at that time loaned to said corporation the sum of $1,000, which was never repaid to him; that after said loan Sam G. Walker & Co., Incorporated, carried on its retail liquor business until May 1, 1916, and made a profit of about $6,000: that Sam G. Walker, who was president of said company, drew out the said entire profits from the business, and made use of them for his own personal uses, thereby using the dividends which belonged to the witness, and the said Sam G. Walker, recognizing his personal indebtedness to the witness, executed to the witness the written contract of date May 1, 1916, introduced in evidence in this case; that for some months prior to May 1, 1916, being the date of such written contract, the property in controversy in this case had been in the brick building or saloon, and possession of Sam G. Walker & Co., Incorporated, and had been used by such corporation in the conduct of its business; that on May 1, 1916, the said property was still in the said brick building or saloon and possession, and remained there until removed as hereinafter stated; that the said property and the furniture and fixtures of Sam G. Walker & Co., Incorporated, which had been used by said corporation in the conduct of its said business, remained in said building and possession of Sam G. Walker & Co., Incorporated, for some time after May 1, 1916; that shortly after May 1, 1916, witness was called to the bedside of his father, who was very ill, and while away from Pocahontas some one, whom he understands was Sam G. Walker, removed the property in controversy in this case from the said brick building or saloon building into the building of Pocahontas Inn or hotel building, in which Pocahontas Inn Company, Incorporated, was conducting a hotel business, which hotel building had been repaired after said fire, such removal being made without theknowledge or consent of the witness; that he understands that said properties were removed from said brick building or saloon building in order to change or remodel the interior of same preparatory to its use as a motion picture theater; that the large mirror, mentioned in said written contract, after its removal from said saloon building, was attached to the partition between the dining room of said Pocahontas Inn Building and sample room that had been constructed from a large porch along the side of same; that the iron safe was placed in a room adjoining the washroom, and that the office counter or cigar case and cash register were placed in the lobby of the Inn, and used in connection with the business of said Inn; that the said Sam G. Walker explained to witness that the reason he placed said mirror there was in order to prevent its being broken; that prohibition went into effect in the town of Pocahontas at midnight on April 30, 1910, after which time said Sam G. Walker & Co., Incorporated, ceased its business of retailing ardent spirits; that at the time said contract was executed he showed same to his attorney, and asked his attorney if said contract would protect him, and he replied that it would; that witness soon thereafter went to the city of Roanoke, Va., where he entered into a liquor business with Virginia Wine & Liquor Company, of which he was a stockholder, and continued in said business there until prohibition went into effect in Virginia November 1, 1916; that witness knew that Sam G. Walker was indebted at the time he executed the said writing; that he did not know what the contract was between the defendant, Deitz, and Sam G. Walker; that he knew that defendant had not been paid for work of installing the heat and plumbing in the Pocahontas Inn building after the fire, which work had been completed, or was about complete, at the time said written contract was executed; that he had never...