Draper v. Mercer Hardware & Furniture Co.

• Citation: 139 S.E. 645,104 W.Va. 144
• Decision Date: 20 September 1927
• Docket Number: 5915.
• Parties: DRAPER v. MERCER HARDWARE & FURNITURE CO. et al.
• Court: Supreme Court of West Virginia

139 S.E. 645

104 W.Va. 144

DRAPER v. MERCER HARDWARE & FURNITURE CO. et al.

No. 5915.

Supreme Court of Appeals of West Virginia.

September 20, 1927

Submitted September 14, 1927.

Syllabus by the Court.

If the evidence of a party be insufficient to sustain a verdict in his favor, the court may take consideration thereof from the jury, and direct a verdict in accordance with the plain preponderance of the evidence.

Points of error based upon the admission or rejection of evidence will not be considered by the appellate court, if not pointed out as a ground for setting aside the verdict, or saved by a special bill or bills of exception showing the evidence and the ruling of the court.

Error to Circuit Court, Mercer County.

Action by Charles H. Draper, receiver of the First National Bank of Matoaka, by notice of motion for judgment, on a note against the Mercer Hardware & Furniture Company and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Ajax T Smith, of Princeton, and Walter G. Burton, of Matoaka, for plaintiffs in error.

French Easley & Easley, of Bluefield, for defendant in error.

LIVELY J.

The First National Bank of Matoaka was placed in the hands of Charles H. Draper, receiver, plaintiff below, hereinafter called the "receiver" in March, 1925. The defendant below, Mercer Hardware & Furniture Company, hereinafter called the "hardware company," had for some years past kept a checking account with the bank and had made various deposits therein. At the time the receiver took charge, this account showed a balance of $61.67 due the hardware company; but several checks issued by the hardware company, bearing indorsements of the payees, respectively were found in the bank by the receiver, which checks had not been charged to the account. These checks were not stamped "Paid" by the bank. The receiver listed them, together with two other checks, found among them, issued by the hardware company on the Bank of Matoaka (another bank) aggregating $560 (one to Wright Drug Company for $500; the other to Carter Hardware & Furniture Company for $60), made a statement of the account which thus showed an overdraft of $5,400.90, and demanded payment. The account thus made up, together with the checks drawn, were presented to defendant A. H. Vest, treasurer and in active charge of the hardware company. He questioned the correctness of the statement, and on the understanding (as he says) that he would not be precluded from making any defense against the correctness of the account he gave a demand note of the hardware company for the $5,400.90, dated June 10, 1925, which he personally indorsed to the receiver. The receiver sued on the note by way of notice of motion for judgment to the first day of the August, 1926, term of court.

The hardware company and Vest defended, and set up by special plea that the note was without consideration, was fraudulently obtained, and was given upon the agreement that no suit was to be brought thereon, and that they were not to be precluded by said note from defending any suit by showing that the hardware company did not owe the amount named in said note. They also filed a set-off to the note, being the balance of $61.67 which was on the ledger of the bank in favor of the hardware company at the time the receiver took charge and pleaded the general issue. Upon the issues thus raised a verdict of $4,113.60 was returned in favor of the receiver, and judgment rendered thereon by the special judge, Hon. Joseph M. Sanders, now deceased, to which judgment this writ was obtained by the hardware company and Vest.

At the conclusion of the evidence defendants offered and were refused an instruction to the effect that, if the jury should believe from the evidence that the hardware company did not owe the bank anything on the overdraft claimed, and that the note was without consideration, and not given in settlement or compromise of the overdraft, then the verdict should be for defendants. The refusal of this instruction is the first error assigned. The checks issued by the hardware company and listed were not questioned by defendants, except the two checks issued on the Bank of Matoaka, for $500 and $60, above mentioned, which two checks, by another instruction of defendants, were directed to be, and were, eliminated from the case. These two checks were directed to be, and were, taken from the amount stated in the note. Defendants questioned the correctness of the account with respect to the deposits made by the hardware company, claiming that deposits had been made which had not been credited.

There were five specific deposits, which defendants claimed were not credited. First, a deposit of the proceeds of a note for $1,000, dated September 29, 1921, at 30 days. The receiver introduced evidence from the bank's record which showed that this note was not an original note, but was a renewal of a note of $2,500 or $3,000, theretofore given and for which the hardware company was credited. However, Vest said it was not a renewal. The jury decided in favor of defendants on that issue, and the receiver has not assigned cross-error. Defendants claimed another deposit of $301.50 as of November 18, 1921, and another of $200 about June 12 1923; but upon inspection of the bank's account these two items were found to have been credited. Defendants claimed two other deposits; one of August 1, 1921, for $629.53, for which the hardware company had a duplicate deposit slip made on the deposit blank of the First National Bank of Matoaka, and the other for $600 as of the same date, August 1, 1921, for which they had a like duplicate deposit slip. These duplicate deposit slips were introduced in evidence, and on them Vest based his claim that the hardware company had not been credited. He could not say that the money evidenced by these duplicate...