Harper v. Coal
| Decision Date | 17 April 1917 |
| Citation | 80 W.Va. 246 |
| Court | West Virginia Supreme Court |
| Parties | Harper v. Clear Fork Coal & Land Co. |
Admission of a misrepresentation constituting the basis of a recital in a contract, accompanied by an explanation which, if true, shows the existence of the subject matter of the representation and discloses a mere error in the description thereof in the contract, does not prove fraud in the making of the false representation, (p. 250).
An admission in a pleading accompanied by an explanation qualifying or limiting its effect, is not to be treated as an unqualified admission. The admission and the explanation are to be read and considered together. (p. 250).
If the maker of a negotiable note disclosing on its face, an alteration thereof respecting its amount, prejudicial to the payee and holder and advantageous to the former, makes no objection to it on the trial of an action thereon, on the ground of such alteration, admits the signature thereto, after inspection, and defends upon a wholly different ground, a jury would be warranted in finding the alteration was made, authorized or assented to by him, wherefore the court, on a demurrer to the evidence, should find the law as to the validity of the note, to be for the plaintiff. (p. 250).
An agreement on the part of a vendor taking a note of the vendee, for part of the consideration, to sue on the note of a third party for the benefit of the vendee and prosecute such suit, is collateral to the purchase money note and independent thereof, wherefore performance of such agreement is not a condition precedent to right of recovery on the purchase money note. (p. 251).
Mere nominal damages proved as matter of set-off or recoupment is disregarded under the maxim, De minimis non curat lex, in the ascertainment of the amount due the plaintiff. (p. 251).
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, judgment for plaintiff.
A. P. Farley, for plaintiff in error.
Alfred D. Preston, for defendant in error.
popfenbarger, judge:
On this writ of error, the plaintiff in an action of assumpsit for the recovery of $330.00 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 sec. 5, ch. 126 of the Code, 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 thirty days prior to that of the note, and then sets forth the substance of the* agreement and avers non-compliance 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 December 25, 1909. By the contract dated July 23, 1912, Harper agreed to convey 20 acres of mineral to the defendant, for and in consideration of two lots in the city of Beckley at a valuation of $250.00 and the difference between that sum and the amount of a note of Stephen Williams or Stephen Williams and others, held by Harper, and the interest accrued thereon. The contract then says this sum, the difference between the $250.00 and the amount of the Stephen Williams note, is to be evidenced by a one year note with interest, executed by Williams and secured by a deed of trust on his place. Williams is no party to the contract. It is signed by Harper, The Clear Fork Coal and Land Co., Ashton File and W. H. File. It does not say who is to procure the note from Williams or to whom that note is to be payable. As it was to constitute part of the consideration for the conveyance of the mineral, it was almost certainly intended to be made payable to Harper. An additional clause appended to the contract seems to have been intended to make it optional as to both Williams and The Clear Fork Coal and Land Co. It says if Williams "does not agree to this memorandum, Clear Fork Coal and Land Co. may take advantage of same at any time within thirty days from this elate, and if it does then H. H. Harper shall sue on the note he holds against said Stephen Williams and prosecute said suit for the benefit of the Clear Fork Coal and Land Co." The signatures to this note or addition are the same as those of the contract to which it is appended. The plaintiff's special replication No. 1, avers an obligation on the part of the defendant to procure the note the parties expected Williams to execute and deliver it to him, and its failure to do so, and charges that, by reason of such failure, the contract became null and void. The special plea and rejoinder of the defendant admit the conveyance of the minerals and execution of the note sued on and aver conveyance of the Beckley lots. By these acts, the defendant took "advantage of" the optional compromise contract. The plea charges that the...
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