First Nat. Bank Of Parkersburg v. Harkness

• Citation: 24 S.E. 548,42 W.Va. 156
• Court: Supreme Court of West Virginia
• Decision Date: 08 April 1896
• Parties: FIRST NAT. BANK OF PARKERSBURG. v. HARKNESS et al.

24 S.E. 548

42 W.Va. 156

FIRST NAT. BANK OF PARKERSBURG.

v.HARKNESS et al.

Supreme Court of Appeals of West Virginia.

April 8, 1896.

Pledge—What Constitutes—Effect — Record.

1. A pledge is a bailment of goods by a debtor to his creditor, to be kept by him until his debt is discharged.

2. Where a party residing in Philadelphia gives the following order to his agent in the city of Parkersburg: "Mr. C. S. Fewsmith, Parkers-burg, W. Va.: Will please hold to the order of Peter C. Hollir and J. L. Richards, trustees of the estate of Samuel Simes, deceased, my stock of lubricating oil stored in my oil tank in Parkersburg, W. Va., as collateral security for thereturn of $7,500, borrowed and received of them, and oblige, truly, Win. W. Harkness;" which paper was indorsed: "Accepted. Parkersburg, \V. Va., May 23rd, 1888. [Signed] Crowell S. Fewsmith, "—said Fewsmith being at the time the agent of said Harkness in possession of said oil, —the acceptance of such order transferred the possession of the oil to said trustees of Samuel Simes, deceased, and the oil was thereby pledged for the payment of said borrowed money.

3. An attachment subsequently levied upon said property as the property of said William W. Harkness would be subject to the lien created by said pledge.

4. Although said pledge was evidenced by writing, it need not be recorded to make it effective as a lien on said oil.

(Syllabus by the Court.)

Error to circuit court, Wood county.

Debt by the First National Bank of Parkersburg against W. W. Harkness, aided by attachment. John W. Dudley, sheriff, and as such administrator d. b. n. c. t. a. of Samuel Simes, deceased, filed a petition against the bank, claiming property levied upon under the attachment. There was a judgment for plaintiff dismissing the petition, and petitioner brings error. Reversed as to petitioner.

J. W. Vandervort, for plaintiff in error.

Hutchinson, Hutchinson & Camden, for defendant in error.

ENGLISH, J. On the 29th day of March, 1894, the First National Bank of Parkersburg brought an action of debt in the circuit court of Wood county against one William AV. Harkness, and at the same time obtained an order of attachment directed to the sheriff of Wood county, who levied the same on a certain lot of land situated in the city of Parkersburg, and described in the return on said order of attachment; also upon the following personal property located on said lot, to wit, one iron oil tank of the capacity of about 3, 000 barrels, and on about 1, S00 barrels of crude oil in said tank, near the outer depot of the Baltimore & Ohio Railroad, Parkersburg, W. Va., on the 30th day of March, 1894, at half past 8 o'clock a. m. On the same day another order of attachment was issued in said suit, directed to the sheriff of Ritchie county, which was levied on the 30th of March, 1894, upon two tracts of land situated in Ritchie county, belonging to said William W. Harkness, described in the return of said sheriff. On the 13th day of July, 1895, John W. Dudley, sheriff of Wood county, and as such administrator with the will annexed of Samuel Simes, deceased, filed a petition against the said First National Bank setting up title to or interest in the oil levied on under said attachment, and advertised to be sold by H. P. Camden and John F. Hutchinson, special commissioners, under attachment and order of sale against William W. Harkness, to which petition the First National Bank appeared by attorneys, and the petitioner filed bond in the penalty of $200, conditioned as required by section 23 of chapter 106 of the Code of 1868, and the counsel agreed to the facts upon the matters arising on said petition and claim, and by agreement a jury was waived, and the whole matter of law and facts submitted to the court. The facts agreed were as follows:

"Upon petition of John W. Dudley, sheriff of Wood county, and as such administrator de bonis non with the will annexed of Samuel Simes, deceased, against the First National Bank of Parkersburg: Be it remembered that upon the trial of the matters arising on the foregoing petition the facts in said cause were agreed upon between said petitioner and the First National Bank of Parkersburg, which agreement of facts was in writing, and is in the words and figures following: The petitioner and the defendant, the First National Bank of Parkersburg, by their counsel of record in the above-entitled cause, hereby waive a jury to try the matters in controversy presented by said petition, and agree that the whole matter of law and fact shall be submitted to a determination by the court in lieu of a jury, and said parties agree to the facts, as follows: That some years ago, prior to 1886, William W. Harkness, a citizen of Pennsylvania, and resident of Philadelphia, became the owner of about 1, 800 barrels of crude petroleum oil, which he caused to be stored in an iron tank situate on a lot on Depot street in the city of Parkersburg, county of Wood, and state of West Virginia, which oil and tank and land belong to the said Harkness then and ever since. Harkness gave the order herein after mentioned. The said tank and the oil therein have ever since remained upon said lot, and the said Harkness has ever since resided in the city of Philadelphia, and has ever since continued to own said lot. Some time after the said Harkness became the owner of said oil, and after he had caused it to be stored in said tank, the said Harkness kept and employed a watchman to guard said oil and tank, and said watchman lived in a house on the premises where the oil tank stands in which said oil was stored. That about the year of 1886 C. S. Fewsmith came to Parkersburg to reside, and was employed by the said Harkness as agent to have a general oversight in and over the property of said Harkness and said oil and said tank for the purpose of preserving and protecting the same, which the said Few-smith did, as the agent of said Harkness, from about the year of 1886 up to the 23d day of May, 1888, when he accepted the order hereinafter mentioned, and thereafter said oil was held as shown by the facts herein admitted; and on and after the date of the acceptance of said order dated May 22, 1888, the trustees of the estate of Samuel Simes, deceased, relied upon said C. S. Few-smith, holding said oil and tank, as their agent under said accepted order, and have never been notified at any time since then by said Fewsmith, Harkness, or any one elsethat said possession was held by any one but for said trustees and said estate of said Simes, deceased; but of this order, and their reliance as aforesaid on it and Fewsmith, they gave no notice to said bank or otherwise; and it is not agreed by said bank that said Fewsmith was at any time the agent of said trustees and estate of Simes, but the court will determine whether said Fewsmith was the agent of said trustees and said estate, or of said Harkness, from the facts and circumstances herein stated. Since the lien of said attachment, the possession of the same said oil, etc., has been in John W. Dudley, sheriff of Wood county, under and by virtue of the levy of said attachment in favor of the defendant against the property of W. W. Harkness. From and after said date of said order the said Few-smith had general watch and supervision over said oil. His expenses and the expenses of the watchman residing upon the premises where said tank stands, and who had immediate control and charge of said oil for Harkness, for the purpose of guarding the same against accident or injury, had and have been paid by William W. Harkness. That during the time said Fewsmith had charge of said tank of oil he resided in the city of Parkersburg, in another part thereof, and away from the lot of land and premises where said oil tank stands, and exercised no other acts of control or possession of said oil except to look after it as stated. That said Fewsmith caused said oil to be insured in the name of said Harkness, and kept it insured, paying the premiums thereon in the name of said Harkness during the time of said insurance, up to within the last year or two; and the taxes on said oil were paid by said Harkness through said Fewsmith, and in the name of said Harkness. It is further agreed that on the 22d day of May, 1888, the said Harkness, then being in Philadelphia, gave the order addressed to the said Fewsmith, a copy of which is filed as an exhibit with the petition in this case, which order the said Fewsmith accepted, as shown on the face of the said order; that after the date of said order and the date of the acceptance thereof said trustees and estate of Samuel Simes, deceased, relied on said Fewsmith as the agent of the trustees of the estate of Samuel Simes, and that they have so continued to rely on C. S. Fewsmith as their agent up to the date for the purposes set forth in said order aforesaid, dated May 22, 1888; but of these claims and said order said bank had no notice, and if said Fewsmith, in managing and controlling said oil, has acted otherwise than as agent of the trustees of the estate of Samuel Simes, except to pay the taxes thereon and insure the same, such dealings had been without any notice thereof to the trustees of the estate of Samuel Simes, deceased, and said bank had no notice of the reliance of said trustees on the claim that Fewsmith was their agent; that the said oil has remained in the same tank, in the same place, on the same lot of said Harkness, precisely as it was at the date of said order of May 22, 1888, under which the petitioner claims in this suit, and since that date no change has been made whatever in the place of storage of said oil, but that the said oil and said tank have there remained and continued down to and including the time of issue of said attachment. It is further agreed that no notice was given of the execution of said older or the acceptance of the same to the public, or to said First National Bank, but that the said Harkness obtained...