Esso Standard Oil Co. v. Kelly

Decision Date02 February 1960
Docket NumberNo. CC852,CC852
CourtWest Virginia Supreme Court
PartiesESSO STANDARD OIL COMPANY v. Esther KELLY.

Syllabus by the Court

1. A notice of motion for judgment, being both a summons and a pleading, is a pleading in an action at law as distinguished from a pleading in a suit in equity.

2. An exhibit, filed with a pleading in an action at law, unless authorized by statute or by rule of court, is not part of the pleading and can not be considered by the court.

3. An absolute guaranty is an unconditional promise of payment or performance of the contract on default of the principal debtor or obligor.

4. In a proceeding by notice of motion for judgment on a contract, the notice must state facts which give rise to a cause of action on contract, express or implied, and it must be so plain that the defendant can not mistake its object even though it may be wanting in form and technical accuracy.

5. Money in a designated and liquidated amount which is due and owing to the plaintiff on a contract in the form of an absolute guaranty of payment by the defendant may be recovered in a proceeding by notice of motion for judgment.

Thornhill & Thornhill, Beckley, for plaintiff.

Clay S. Crouse, Beckley, for defendant.

HAYMOND, Judge.

This is a notice of motion for judgment proceeding instituted in the Circuit Court of Raleigh County for the recovery by the plaintiff, Esso Standard Oil Company, a corporation, of money due and owing to it by the defendant, Esther Kelly, upon a written contract signed by the defendant which the plaintiff alleges to be an unconditional guaranty for the payment of the sum of $5,299.79, the principal amount for which the plaintiff sues, with interest upon that sum until paid.

The notice, which was returnable before the Circuit Court of Raleigh County on July 21, 1958, alleges that the principal sum of $5,299.79 with interest is due and owing to the plaintiff from the defendant upon a written unconditional guaranty executed by the defendant, dated May 28, 1958, by which the defendant guaranteed the payment of sums of money owed the plaintiff by Donald G. Kelly not to exceed the sum of $7,750; that Donald G. Kelly failed to pay the plaintiff the sum of $5,299.79; and that the defendant has failed and refused to pay that sum of money. With and attached to the notice is an affidavit in behalf of the plaintiff which states that the claim of the plaintiff is based upon the written unconditional guaranty mentioned in the notice and that there is due and unpaid from the defendant to the plaintiff, upon the demand stated in the notice, after deducting all payments, credits and setoffs made by the defendant or to which the defendant is entitled, the sum of $5,299.79.

The defendant demurred to the notice on the ground that it states a claim for damages and does not state a cause of action to recover money due on contract. The defendant also filed a motion to quash the affidavit on the ground that it does not state the several items of the plaintiff's claim as provided by the statute on which the proceeding is based.

By order entered October 1, 1959, the circuit court sustained the demurrer and held the notice insufficient in law and upon its motion certified to this Court the question whether the notice states a claim for damages instead of a cause of action to recover money due on contract.

The plaintiff attached to the notice and filed, as an exhibit, a photostatic copy of the written guaranty on which the plaintiff bases its claim for a recovery in this proceeding.

A notice of motion for judgment, being both a summons and a pleading, State ex rel. Stout v. Rogers, 132 W.Va. 548, 52 S.E.2d 678; Jennings v. Wiles, 82 W.Va. 573, 96 S.E. 1009; Stuart v. Carter, 79 W.Va. 92, 90 S.E. 537, L.R.A.1918D, 1070, is a pleading in an action at law as distinguished from a pleading in a suit in equity. The rule is well established in this jurisdiction that an exhibit, filed with a pleading in an action at law, unless authorized by statute or by rule of court, is not part of the pleading and can not be considered by the court. Cawley v. The Board of Trustees of the Firemen's Pension or Relief Fund of the City of Beckley, 138 W.Va. 571, 76 S.E.2d 683; State ex rel. Emery v. Rodgers, Judge, 138 W.Va. 562, 76 S.E.2d 690; State ex rel. Medley v. Skeen, Warden, 138 W.Va. 409, 76 S.E.2d 146; Mustard v. The City of Bluefield, 130 W.Va. 763, 45 S.E.2d 326; Vorholt v. Vorholt, 111 W.Va. 196, 160 S.E. 916; Laurenzi v. James E. Pepper Distilling Company, 90 W.Va. 794, 112 S.E. 177; Hall v. Harvey Coal and Coke Company, 89 W.Va. 55, 108 S.E. 491; State ex rel. Pingley v. Pingley, 84 W.Va. 433, 100 S.E. 216. In the recent case of Case v. Shepherd, 140 W.Va. 305, 84 S.E.2d 140, this Court, adhering to its decision in City of Beckley v. Craighead, 125 W.Va. 484, 24 S.E.2d 908, and expressly disapproving a contrary holding in point 2 of the syllabus in Mountain State Water Company v. Town of Kingwood, 121 W.Va. 66, 1 S.E.2d 395, held in point 3 of the syllabus that in a proceeding by notice of motion for judgment on a contract, the common law rule relating to use of exhibits with pleadings prevails; and that exhibits attempted to be filed with pleadings in such a proceeding can not be considered. In consequence the photostatic copy of the written guaranty, filed with the notice, will not be considered by this Court. The notice, however, sufficiently sets forth the substance of the written guaranty to enable this Court to determine whether that instrument is a contract for for payment of money which may be made the basis of a proceeding by notice of motion for judgment.

It is clear from the allegations of the notice descriptive of the written instrument sued upon that it constitutes an absolute guaranty for the payment of money. In Loverin and Browne Company v. Bumgarner, 59 W.Va. 46, 52 S.E. 1000, this Court, in holding that the instrument on which the claim of the plaintiff was based in that case was an absolute guaranty of payment upon which a case may be commenced against the guarantor without any previous suit against his principal, in the opinion, citing Arents v. Commonwealth, 18 Grat. 750, and quoting from that case, said that the intention of the guarantor governs; that if it appears to have been his intention to make himself liable on the default of the principal debtor, without the use of the ordinary means to compel payment by him, or proof of his insolvency, he will be held liable accordingly; and that his contract, in such case, is a guaranty of payment, or of punctual payment, by the principal debtor, and not a guaranty of solvency, or of ultimate payment, after the usual means of enforcing it are employed. The opinion in that case also mentions several examples of similar instruments which constitute an absolute or unconditional guaranty of payment which is not a guaranty of collection merely and that an action may be commenced against the guarantor without any previous proceeding against the principal debtor.

In Henderson v. Kessel, 93 W.Va. 60, 116 S.E. 68, this Court held that a guaranty, which provided that the signers guaranteed the payment of a designated sum upon the completion of a well then being drilled, and was signed by the guarantors, was an absolute guaranty of payment when the well was completed, and that the person to whom the guaranty was given could maintain a suit upon it against the guarantors without having exhausted his remedy against the principal debtor or showing that the principal debtor was insolvent.

An absolute guaranty has been defined as an unconditional undertaking...

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12 cases
  • State ex rel. Wilson v. County Court of Barbour County
    • United States
    • Supreme Court of West Virginia
    • July 6, 1960
    ...... filed with a pleading in such action, in the absence of statutory authority or rule of court, Esso Standard Oil Company v. Kelly, W.Va., 112 S.E.2d 461; Case v. Shephered, 140 W.Va. 305, 84 S.E.2d ......
  • Gregoire v. Lowndes Bank
    • United States
    • Supreme Court of West Virginia
    • April 4, 1986
    ...promise of payment or performance of the contract on default of the principal debtor or obligor." Syl. pt. 3, Esso Standard Oil Co. v. Kelly, 145 W.Va. 43, 112 S.E.2d 461 (1960). A.L. Emch, Thad S. Huffman, Jackson, Kelly, Holt & O'Farrell, Thomas W. Kupec,Michael & Kupec, Clarksburg, for a......
  • State ex rel. Stollings v. Gainer
    • United States
    • Supreme Court of West Virginia
    • November 20, 1969
    ...changed by this rule and by the Rules of Civil Procedure, was as stated in the second point of the syllabus of Esso Standard Oil Company v. Kelly, 145 W.Va. 43, 112 S.E.2d 461, as follows: 'An exhibit, filed with a pleading in an action at law, unless authorized by statute or by rule of cou......
  • Hamlin v. Transcon Lines
    • United States
    • United States State Supreme Court of Wyoming
    • June 18, 1985
    ...Hawaii App., 672 P.2d 556 (1983); 489 P.2d 760 (1971); Sanchez v. Alonso, 96 Nev. 663, 615 P.2d 934 (1980); Esso Standard Oil Company v. Kelly, 145 W.Va. 43, 112 S.E.2d 461 (1960). The statutory indemnity set out in § 1-39-104(b) is broad enough to include indemnity against liability. The s......
  • Request a trial to view additional results

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