Herrington v. Jones

• Decision Date: 10 March 1936
• Docket Number: No. 8274.,8274.
• Citation: 184 S.E. 853
• Parties: HERRINGTON . v. JONES et al.
• Court: West Virginia Supreme Court

184 S.E. 853

HERRINGTON .

v.JONES et al.

No. 8274.

Supreme Court of Appeals of West Virginia.

March 10, 1936.

Syllabus by the Court.

In a bill seeking relief against alleged misrepresentation, averment showing that the plaintiff's reliance on the representation was justifiable, is necessary to confer jurisdiction in equity.

Appeal from Circuit Court, Harrison County.

Suit by William J. Herrington against J. Ralph Jones and another. From a ruling sustaining a demurrer to the bill and its amendments, plaintiff appeals.

Affirmed.

E. G. Smith and John B. Smith, both of Clarksburg, for appellant.

C. C. Davis and Powell & Clifford, all of Clarksburg, for appellees.

HATCHER, President.

In this suit, the plaintiff seeks the restraint of the prosecution of an action against him upon a note, the cancellation of the note, the reformation of a deed of trust securing the note, and other ancillary relief. The circuit court sustained a demurrer to the bill and its amendments.

The bill, as amended, alleges that in April, 1931, J. R. Jones, president of and acting for the Bridgeport Bank, negotiated the conditional sale to plaintiff of a property called "Tourist Home"; that the price agreed was $8,000, to be secured only by a deed of trust on that property; that it was also agreed that if plaintiff was not satisfied with the deal, after reasonable trial of the property as a tourists' home, he should return it to the bank and be absolved from payment therefor; that Jones, upon his own suggestion, had prepared a deed, deed of trust, and note which he presented to plaintiff representing that they embodied the agreement; that plaintiff is a bricklayer and unlettered in law; that Jones and plaintiff were both thirty-second degree Masons, and by reason thereof plaintiff reposed special trust in Jones and executed the papers so tendered, believing that they correctly recited the agreement; that plaintiff renewed the note in October,

1931, and in January, 1932; that he learned for the first time in February,

1932, that his liability on the note was personal and unlimited; that being "short of sufficient proof to overcome said papers, " he renewed the note in April, 1932; that the value of the Tourist Home declined, plaintiff became dissatisfied with his purchase, and refused to renew again the note; and that the bank refused his request to rue back or to reform the papers, and brought an action on the note in October, 1932.

The trial chancellor held that the real relief sought...