First Nat. Bank of Gallipolis v. Marietta Mfg. Co., No. 12571

CourtSupreme Court of West Virginia
Writing for the CourtCAPLAN
Citation153 S.E.2d 172,151 W.Va. 636
PartiesFIRST NATIONAL BANK OF GALLIPOLIS v. MARIETTA MANUFACTURING COMPANY, a Corporation.
Decision Date29 May 1967
Docket NumberNo. 12571

Page 172

153 S.E.2d 172
151 W.Va. 636
FIRST NATIONAL BANK OF GALLIPOLIS
v.
MARIETTA MANUFACTURING COMPANY, a Corporation.
No. 12571.
Supreme Court of Appeals of West Virginia.
Submitted Feb. 7, 1967.
Decided March 7, 1967.
Rehearing Denied May 29, 1967.

Page 174

Syllabus by the Court

1. Where one makes an unequivocal statement in writing that he will pay another a certain sum of money and the latter, in reliance upon such statement, performs to his detriment, as expected from the circumstances surrounding the parties, a contractual relationship is consummated, consisting of an offer and an acceptance, supported by sufficient consideration.

2. A motion for summary judgment should be granted if the pleadings, affidavits or other evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

[151 W.Va. 637] Steptoe & Johnson, Charles W. Yeager, Charleston, for appellant.

Kay, Casto & Chaney, Robert H. C. Kay, John T. Kay, Jr., Ralph C. Dusic, Jr., Charleston, for appellee.

CAPLAN, Judge:

The plaintiff, First National Bank of Gallipolis, instituted a civil action in the Circuit Court of Mason County against the defendant, Marietta Manufacturing Company, a corporation, seeking to recover the sum of $8,676.41. The Circuit Court granted the defendant's motion to strike the evidence of the plaintiff and entered an order directing a verdict for the defendant. It is from the judgment entered on that order that this appeal is now prosecuted. The plaintiff will be referred to as the Bank and the defendant as Marietta.

The following factual situation, as revealed by the record, gave rise to this civil action. On December 4, 1961, J. L. McCorry, Jr. approached Mr. Joe Moch, the president of the First National Bank of Gallipolis, for the purpose of obtaining a loan from the Bank. During the course of their discussion, Mr. McCorry informed Mr. Moch that Marietta Manufacturing Company was indebted to him in the sum of $20,896.38, and that he would pledge the unpaid invoices in that amount as collateral for the $20,000.00 loan he was seeking. Mr. Moch replied that the invoices were not satisfactory as collateral, but said that the desired loan would be made if Mr. McCorry would obtain and present to him a letter from Marietta stating that it would make payments jointly to Mr. McCorry and the Bank. The next day the loan was made by the Bank upon presentation by Mr. McCorry of the following letter:

[151 W.VA. 638] 'DECEMBER 5, 1961

MR. J. MOCK, PRESIDENT

FIRST NATIONAL BANK OF GALLIPOLIS

GALLIPOLIS, OHIO

Dear Mr. Mock:

Per our records as of November 30, 1961, we have unpaid invoices totaling $20,896.38,

Page 175

payable to J. L. McCorry, Jr. for billing of sand and equipment rental. Per wishes of Mrs. McCorry today checks for payment of these shall be made payable to First National Bank of Gallipolis and J. L. McCorry, Jr.

Very truly yours,

MARIETTA MANUFACTURING COMPANY

/s/ Jon M. Leighty

Jon M. Leighty

Comptroller

JML:nlh'

No payments were made on this loan until May 18, 1962 when Marietta, in accordance with the commitment in its letter of December 5, 1961, issued its check in the sum of $12,219.97, payable to 'First National Bank of Gallipolis and J. L. McCorry, Jr.' Except for $600.00, which was credited to interest on the subject loan, the amount of this check was applied to the principal indebtedness owed by Mr. McCorry to the Bank.

On June 22, 1962, Marietta, without making any inquiry of the Bank and without advising it of its intention to do so, issued its check in the sum of $10,362.69, payable to J. L. McCorry, Jr. and delivered it to the said payee. When the Bank subsequently requested additional payment on the McCorry loan from Marietta it was advised that all sums due Mr. McCorry by Marietta had been paid and that it, therefore, would make no further payment to the Bank. Mr. McCorry, now residing in the State of Florida, refuses to pay the Bank the balance due and owing on his loan. Consequently, the Bank, relying on Marietta's commitment in its letter[151 W.Va. 639] of December 5, 1961, instituted this action to recover the balance due on said loan.

In its answer Marietta substantially admits the factual averments contained in the Bank's amended complaint, but denies that the subject letter created any legally binding undertaking. Interrogatories were propounded by Marietta to the Bank and were answered. After affidavits of Mr. Moch and Mr. McCorry were filed on behalf of the Bank and counter affidavits of Mr. Leighty were filed on behalf of Marietta, the plaintiff and defendant each filed a motion for summary judgment. By order dated May 4, 1964, each of these motions was denied.

The case was set for jury trial on June 22, 1965, at which time the Bank presented the evidence of Joe Moch, its president, and Marlin G. Kearns, its cashier, after...

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51 practice notes
  • Cook v. Heck's Inc., No. 16538
    • United States
    • Supreme Court of West Virginia
    • April 4, 1986
    ...which constitutes a performance of that requested by the offeror is well established." First National Bank v. Marietta Manufacturing Co., 151 W.Va. 636, 641-42, 153 S.E.2d 172, 176 Consideration is also an essential element of a contract. First National Bank v. Marietta Manufacturing Co., s......
  • Freeman v. Poling, No. 16316
    • United States
    • Supreme Court of West Virginia
    • December 20, 1985
    ...Cochran v. Ollis Creek Coal Co., 157 W.Va. 931, 206 S.E.2d 410 (1974); First National Page 420 Bank of Gallipolis v. Marietta Mfg. Co., 151 W.Va. 636, 153 S.E.2d 172 We do not believe these cases are relevant to the facts of this case. Here the issue is whether promises of a public official......
  • Verizon West Virginia, Inc. v. West Virginia Bureau of Employment Programs, No. 30899.
    • United States
    • Supreme Court of West Virginia
    • July 9, 2003
    ...which constitutes a performance of that requested by the offeror is well established.'" (quoting First Nat'l Bank v. Marietta Mfg. Co., 151 W. Va. 636, 641-42, 153 S.E.2d 172, 176 (1967)). Moreover, in the instant case, the contract between the parties comes under the legal theory of an "im......
  • Brown v. Genesis HealthCare Corp., Nos. 35494
    • United States
    • Supreme Court of West Virginia
    • June 29, 2011
    ...offer and an acceptance, supported by sufficient consideration. See Syllabus Point 1, First Nat. Bank of Gallipolis v. Marietta Mfg. Co., 151 W.Va. 636, 153 S.E.2d 172 (1967); Syllabus Point 5, Virginian Export Coal Co. v. Rowland Land Co., 100 W.Va. 559, 131 S.E. 253 (1926). We do not beli......
  • Request a trial to view additional results
51 cases
  • Cook v. Heck's Inc., No. 16538
    • United States
    • Supreme Court of West Virginia
    • April 4, 1986
    ...which constitutes a performance of that requested by the offeror is well established." First National Bank v. Marietta Manufacturing Co., 151 W.Va. 636, 641-42, 153 S.E.2d 172, 176 Consideration is also an essential element of a contract. First National Bank v. Marietta Manufacturing Co., s......
  • Freeman v. Poling, No. 16316
    • United States
    • Supreme Court of West Virginia
    • December 20, 1985
    ...Cochran v. Ollis Creek Coal Co., 157 W.Va. 931, 206 S.E.2d 410 (1974); First National Page 420 Bank of Gallipolis v. Marietta Mfg. Co., 151 W.Va. 636, 153 S.E.2d 172 We do not believe these cases are relevant to the facts of this case. Here the issue is whether promises of a public official......
  • Verizon West Virginia, Inc. v. West Virginia Bureau of Employment Programs, No. 30899.
    • United States
    • Supreme Court of West Virginia
    • July 9, 2003
    ...which constitutes a performance of that requested by the offeror is well established.'" (quoting First Nat'l Bank v. Marietta Mfg. Co., 151 W. Va. 636, 641-42, 153 S.E.2d 172, 176 (1967)). Moreover, in the instant case, the contract between the parties comes under the legal theory of an "im......
  • Brown v. Genesis HealthCare Corp., Nos. 35494
    • United States
    • Supreme Court of West Virginia
    • June 29, 2011
    ...offer and an acceptance, supported by sufficient consideration. See Syllabus Point 1, First Nat. Bank of Gallipolis v. Marietta Mfg. Co., 151 W.Va. 636, 153 S.E.2d 172 (1967); Syllabus Point 5, Virginian Export Coal Co. v. Rowland Land Co., 100 W.Va. 559, 131 S.E. 253 (1926). We do not beli......
  • Request a trial to view additional results

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