Harper v. Clear Fork Coal & Land Co

• Citation: 92 S.E. 565
• Decision Date: 17 April 1917
• Docket Number: (No. 3167.)
• Court: Supreme Court of West Virginia
• Parties: HARPER. v. CLEAR FORK COAL & LAND CO.

(80 W.Va. 246)
92 S.E. 565

HARPER.
v.
CLEAR FORK COAL & LAND CO.

(No. 3167.)

Supreme Court of Appeals of West Virginia.

April 17, 1917.

[92 S.E. 565]

Rehearing Denied May 23, 1917.

(Syllabus by the Court.)

Error to Circuit Court, Raleigh County.

Assumpsit by H. H. Harper against the Clear Fork Coal & Land Company. Judgment for defendant on sustaining a demurrer to the evidence, and plaintiff brings error. Reversed, demurrer to evidence overruled, and judgment entered for plaintiff.

A. P. Farley, of Beckley, for plaintiff in error.

Alfred D. Preston, of Beckley, for defendant in error.

POFFENBARGER, J. On this writ of error, the plaintiff in an action of assumpsit for the recovery of $330 and interest, alleged to be due him on a promissory note, seeks reversal of a judgment rendered therein for the defendant, on a demurrer to the evidence.

Though the defendant interposed a plea of non assumpsit on which issue was joined, its real defense is founded upon a special plea of confession and avoidance, or a.special plea of the kind contemplated by section 5, c. 126, of the Code (sec. 4825), alleging failure of consideration of the contract or fraud in its procurement. Its true character is uncertain, for the situation it discloses and the defense it sets up are unusual and anomalous. It admits the execution and delivery of the note to the plaintiff, for and as part consideration for his conveyance of 20 acres of coal and other minerals to the defendant, and then avers that it was so executed and delivered under and pursuant to a compromise agreement made between the plaintiff, on the one hand, and the defendant and two individuals, on the other, on a date 30 days prior to that of the note, and then sets forth the substance of the agreement and avers noncompliance with a provision thereof, which, it says, imposes an obligation on the plaintiff. It further avers untruthfulness of a representation incorporated in the contract, and alleged to have been made by the plaintiff, to the effect that he held a certain note.

A special replication filed by the plaintiff sets forth the compromise agreement in full. It bears date July 23. 1912, and says it is a part of a compromise made on that day between the plaintiff and the defendant, respecting what it calls the C. P. Stover tract. It further says the compromise was effected by a deed bearing even date therewith, as to the 20 acres of minerals conveyed to H. H. Harper, the plaintiff, by one Stephen Williams, by a deed dated...