Hines v. Fulton.

• Decision Date: 31 October 1922
• Citation: 92 W.Va. 204
• Court: West Virginia Supreme Court
• Parties: Cary C. Hines, Admr. v. Elwood D. Fulton et al.

92 W.Va. 204

Cary C. Hines, Admr.

v.Elwood D. Fulton et al.

Supreme Court of Appeals of West Virginia.

Submitted October 25, 1922.

Decided October 31, 1922.

1. Assignments Assignment of Chose in Action Fixes Equitable Title in Assignee, Although Amount Not Definitely Determined.

An assignment of a chose in action, or a part thereof, even though the amount of the same is not definitely "determined, vests equitable title thereto, or to the part so assigned, in the assignee, (p. 212).

2. Same Assignment by Debtor to Creditor of Sufficient Amount of Chose in Action to Satisfy Debt Passes Equitable Title to Such Amount; Assignment of Chose in Action to Satisfy Debt Not Invalid if Amount Capable of Ascertainment.

An assignment by a debtor to his creditor of a sufficient amount of a chose in action due him to satisfy the amount of his then existing debt, when the same is ascertained, and which is in dispute, passes the equitable title to the creditor to such part of the chose in action as may be necessary to satisfy the debt when the same is fixed and determined. If the indebtedness to secure which, or to pay which, the asssignment is made, actually exists at the time of the assignment, the same will not be rendered invalid because the parties do not agree on the amount thereof, such amount being capable of ascertainment by a court of competent jurisdiction. In equity that is certain which is capable of being made certain. (p. 212).

3. Equity Bill Not Dismissed for Laches Where Plaintiff Was Prosecuting Suit Against Defendant in Another Court.

The plaintiffs bill will not be dismissed because of laches, where it appears that he was vigorously prosecuting a suit to vindicate his rights against the defendant in another court during all of the time that elapsed between the accrual of the cause of action and the institution of the suit sought to be barred by laches, (p. 212).

Appeal from Circuit Court, Braxton County.

Suit by Gary C. Hines, administrator, against Elwood D. Fulton and others. From an order sustaining a demurrer to the bill, plaintiff appeals.

Reversed; Demurrer overruled; Remanded.

W. E. R. Byrne, II. L. Robinson, and Cary C. Hines, for appellant.

Bryan, Williams & Gave, and Haymond & Fox, for appellees.

Ritz, Judge:

This suit was brought for the purpose of setting aside a decree entered in the chancery cause of E. D. Fulton v. Joseph Ramsey, Jr., et als., in the Circuit Court of Braxton county, upon the ground that said decree was a fraud upon the rights of the plaintiff in this suit. A demurrer to the plaintiff's bill and amended bill was sustained, and he prosecutes this appeal.

The facts giving rise to the litigation are fully set up in the bill and amended bill. In the year 1901 William Crennell, Jr., was a mining engineer living in the State of Pennsylvania, and the defendant Elwood D. Fulton was a lawyer and speculator also living in Pennsylvania. Crennell had some acquaintance with coal properties in West Virginia, and believed that money could be made in buying and selling these properties. Being without capital himself, he negotiated with Fulton, and the result of these negotiations was that he and Fulton entered into a contract by which they agreed to acquire coal interests in West Virginia for the purpose of investment and resale. It was understood that Crennell would make all of the investigations and examinations and procure the contracts for the purchase of the property, and Fulton would furnish any funds necessary to pay the expense of procuring such properties, and upon sale thereof the profits arising therefrom were to be divided equally between the parties. A large number of properties were acquired by Crennell and Fulton under this arrangement. The title to all of these properties was taken in the name of Fulton. They were resold to various parties, principally to the Little Kanawha Syndicate, represented by the defendants Joseph Ramsey, Jr., George J. Gould and William E. Guy as managers. A disagreement arose between Fulton and the managers of the Little Kanawha Syndicate as to the amount remaining unpaid by that syndicate for the lands purchased. A large amount had been paid to Fulton by the syndicate, but he was still claiming something over three hundred thousand dollars as the balance due. This claim was contested, or at least it was denied that the syndicate owed that large an amount. In order to settle this controversy, Fulton instituted a suit in equity in the Circuit Court of Braxton county, West Virginia, having for its purpose the specific execution of the contract made by him for the sale of these lands to the Little Kanawha Syndicate. Prior to the institution of this suit the syndicate had sold some of these lands to other parties and corporations, and these parties were all made defendants to that suit. The purpose of the suit was to have the amount remaining unpaid ascertained and a sale of the lands decreed in satisfaction thereof.

In 1903 Crennell called upon Fulton for a settlement of their matters under the contract. Up to this time, while there had been large profits realized from the resale of the lands acquired by Crennell in Fulton's name, Fulton had never accounted to Crennell for any part of these profits. "When this demand was made upon him for an accounting he repudiated the contract and denied that Crennell had any interest in the transaction, notwithstanding the contract between him and Crennell was in writing, and was signed by him. Crennell thereupon instituted suit in the Court of Common Pleas of Fayette County, Pennsylvania, against Fulton for his share of the profits realized in their joint adventure, and at the same time also instituted suit in the Circuit Court of Braxton County for the same purpose, and in this suit he set up the fact that he was a partner of Fulton's and had equal interest with Fulton in the claim for purchase money against the Little Kanawha Syndicate, and made the members of that syndicate parties to his bill, and also attached other funds belonging to Fulton, as well as other lands situate in Braxton County. These suits were brought in the year 1903. A part of the property attached by Crennell consisted of a judgment in favor of Fulton against T. Marcellus Marshall for the sum of $16,645.31, It was claimed by Fulton that he had assigned this judgment to his attorney, Wm. E. Haymond, and he desired that the same be released from the lien of Crennell's attachment, so that the amount thereof might be paid to Haymond. Crennell agreed to release the attachment against this judgment upon condition that Fulton assign to him a sufficient amount of the claim which he was asserting against the Little Kanawha Syndicate to pay the claim asserted by him against Fulton, and in order to accomplish this purpose Fulton, on the 18th day of February. 1910. executed a paper purporting to assign so much of the claim asserted by him against the Little Kanawha Syndicate as might be necessary to satisfy any judgment or decree secured against him by Crennell. Inasmuch as this paper is the basis of this suit, and the propriety of the court's ruling depends upon the proper construction thereof, we quote the same at length. "ASSIGNMENT. Whereas, a suit in equity has been instituted and is pending in the Circuit Court of Common Pleas of Fayette County, Pennsylvania, in the name of William Crennell, Jr., plaintiff, against Elwood D. Fulton, defendant, to recover certain moneys for claims set forth in the amended bill of complaint filed in said suit, and another suit in equity has been instituted by the said William Crennell, Jr., plaintiff, against the said Elwood D. Fulton and others, defendants, and is pending in the Circuit Court of Braxton County, West Virginia, to recover the claims set forth in the bill filed therein, which latter claims embrace the same which are involved in the first mentioned suit, and in the said last mentioned suit an attachment was sued out by the said Crennell against the property and claims of the said Fulton and upon the order of attachment T. Marcellus Marshall was designated as being indebted to or having in his possession property and claims belonging to the said Fulton, and was summoned to answer and has filed his answer in the said Circuit Court of Braxton County, whereby it appears that the said Marshall is indebted by decree of the Circuit Court of the United States for the Northern District of West Virginia, at Parkersburg, pronounced on theday

of, 19--, against him in favor of the said Fulton, and

that the amount of the decree is claimed by W. E. Haymond by reason of an assignment claimed to have been made to him by the said Fulton.

"NOW, THEREFORE, in consideration of the waiver of the said William Crennell, Jr., plaintiff, in the cause so pending in the Braxton Circuit Court, to be evidenced by an order to be entered of record in said cause, and without in any manner recognizing or conceding the claims of the said Crennell, or any of them, and reserving the right to make full defense thereto to the same extent as if this writing had not been executed, I, the said Elwood D. Fulton, hereby assign and transfer to the said William Crennell so much of the moneys claimed by me in the suit in equity instituted by me as plaintiff against Joseph Ramsey and others in the Circuit Court of Braxton County as may be sufficient to satisfy any decree that may be pronounced in favor of the said Crennell in either of the two suits aforesaid so instituted by him, and authorize and direct the application of any money which may be recovered by me or to which T am entitled in said suit against Joseph Ramsey and others toward the satisfaction in whole or in part of any decree which may be so obtained in favor of the said Crennell; and this assignment is made with the agreement that it shall not operate to impede or in any wise obstruct or delay the prosecution of the suits aforesaid of the said Crennell or in any way prejudice his...