Hopkins v. Detwiler

• Decision Date: 18 April 1885
• Citation: 25 W.Va. 734
• Court: West Virginia Supreme Court
• Parties: Hopkins & Janney v. Detwiler & Co.

25 W.Va. 734

Hopkins & Janney

v.Detwiler & Co.

Supreme Court of Appeals of West Virginia.

Submitted January 28, 1885.

Decided April 18, 1885.

A negotiable note payable to A. H. Detwiler Co. is secured by a deed of trust executed by the makers. Just before this note became due the makers of the note applied to A. H. Detwiler to permit them to draw a draft on Detwiler c English, a firm in which A. H. Detwiler is a partner, for the amount of this note payable in ninety days, and he for the firm of Detwiler & English agrees that this may be done for the accommodation of the makers of this negotiable note, they proposing to take up this negotiable note with this draft and to pay the draft when it falls due. This draft was accordingly so drawn payable in ninety days. The makers of this note, the drawers of the draft, had the draft discounted by a bank, which held the negotiable note for collection, and the bank surrendered the negotiable note to them and sent the proceeds of the note to the parties, to whom the negotiable note was due; and the makers of the negatiable note at once sent it to Detwiler & English, the parties on whom they drew the draft. At the expiration of the ninety days, when*the draft became payable, the drawers of it, the makers of the negotiable note, failed to pay it according to their promise, and the parties on whom it was drawn, Detwriler & English, paid it. And thereupon A. H. Detwiler & Co, the payees of the negotiable note, paid to Detwiler & English the full amount of the note, that being the amount, which they had paid to take up the draft; and Detwiler & English transferred the negotiable note to the payees of it, A. H. Detwiler & Co. Held:

This note will not be regarded by a court of equity as paid or satisfied; but the credit on the debt represented by it will be regarded as simply extended for ninety days; and the payment of this negotiable note may be enforced by A. H. Detwiler & Co. out of the property conveyed by the deed of trust for its security.

Green, Judge, furnishes the following statement of the case:

The members of the firm of J. B. Detwiter & Co., millers, ot Wheeling, W. Va., and their wives on July 16, 1864, executed a deed ot trust to J. S. Wheat and Sobieski Brady, trustees, of Wheeling on certain real estate in Wheeling to secure first, a debt due to Hopkins & Janney, merchants of Baltimore, Md., evidenced by a negotiable note of $5,000 executed by Detwiler & Co to Hopkins & Janney dated July 16, 1864, payable five years after date, the interest payable semi-annually, and to secure any note or notes which may be given in renewal or extension of said note either in whole or in part, the. deed of trust providing: "It being hereby understood that, if the said J. B. Detwiler & Co. or the said Hopkins & Janney shall upon the maturity of said note wish to extend the time of the payment thereof for a like period of five years, they or either of them shall have that privilege. Secondly, to secure to A. II. Detwiler & Co. for several notes dated July 16, 1864, payable and negotiable at the Merchants' and Mechanics' Bank of Wheeling, the first lor the sum of $2,600.00 payable twelve months after date, the second for the sum of $2,480.00 payable two years after date, the third for the sum of $2,360.00 payable three years after date, the fourth for the sum of $2,240.00 payable four years after its date and the fifth for the sum of $2,120.00 payable five years after its date amounting to $11,800.00; also to secure any note or notes, that may be given in renewal or extension of any one or more of said notes either in whole or in part, and thirdly to secure also the payment of the debts before mentioned, the payment of any sum or sums of money for the payment whereof the said Hopkins & Janney may hereafter become in any manner liable for the account or accomodation ot J. B. Detwiler & Co., to an amount not exceeding $5,000.00 whether the liability may have been incurred as acceptors or endorsers of J. B. Detwiler & Co., or in any other manner whatsoever." J. B. Detwiler & Co., were required by this deed of trust to keep the property conveyed, as mill and other perishable property, insured for the benefit of the cestui que trust in an amount not less than $15,000.00. This deed of trust was acknowledged and duly admitted to record on August 3, 1864. Shortly thereafter, in August 1864, by an agreement between Hopkins & Janney and J. B. Detwiler k Co. under the provisions for debts in the third class in this deed of trust as above quoted, J. B. Detwiler & Co. drew a sight-draft for $3,000.00 on Hopkins & Janney on August 13, 1864, and a like sight-dratt for $2,000.00 on August 20, 1874. These two drafts wTere paid on sight by Hopkins & Janney.

On July 21, 1866, the property conveyed by this deed of trust wTas destroyed by fire. This was only two days after the second note for $2,480.00 secured in the second class in this deed of trust fell due. This fire rendered J. B. Detwiler & Co. insolvent. After much litigation the trustees, Wheat and Brady, collected the insurance, which under the provisions of this deed of trust had been taken in different insurance-companies at different times, in all $16,326.75. Before this fire occurred J. B. Detwiler & Co. paid the first negotiable note secured in the second class in said deed of trust for $2,600.00 due on July 19, 1865, to A. II. Detwiler & Co. Out of the funds which came into the hands of the trustees they, or rather their counsel, Wheat & Forbes, paid to Hopkins & Janney the debt of $5,000.00 evidenced by the negotiable note ot J, B. Detwiler and secured first in said deed of trust. But, a controversy having arisen between Hopkins & Janney and A. H. Detwiler & Co., as to whether J. B. Detwiler & Co. had paid off at maturity on July 19, 1866, their negotiable note for $2,480.00 payable and negotiable at the Merchants' and Mechanics' Bank of Wheeling, the trustees Wheat and Brady refused to pay to Hopkins & Janney anything on the two drafts of J. B. Detwiler & Co., tor $2,000.00 and $3,000.00 respectively, which they had accepted and paid at sight, and which were secured in the third and last class in said deed of trust. There was in the hands of these trustees Wheat and Brady, or their counsel after the payment of the negotiable note of $5,000.00 due to Hopkins & Janney and first secured more than enough to pay the third, fourth and fifth negotiable notes to A. H. Detwiler & Co., secured in the second class in said deed of trust, but not enough to pay in addition the whole of the second of said notes, which fell due on July 19, 1866, the first of said five notes so secured having been paid by J. B. Detwiler & Co. So that, if in fact this second of said notes for $2,480.00 had been paid by J. B. Detwiler & Co., then a considerable balance wasin the hands of the trustees, Wheat and Brady, applicable to the payment to Hopkins & Janney of the $5,000.00 they had paid on the two drafts of J. B. Detwiler & Co., and which are secured in the third class in said deed of trust. But if in fact this second note of G. B. Detwiler & Co., of $2,480.00 due July 19, 1866, had not been paid at maturity by J. B. Detwiler & Co., then the whole balance in the hands of the trustees, Wheat and Brady was payable to A. II. Detwiler & Co., on the notes still unpaid and secured in the second class in said deed of trust. But the trustees refused to assume the responsibility ot deciding this dispute and would not pay over this fund in controversy to either party, till the court should decide to whom it was properly payable. Hopkins & Janney therefore brought a suit in chancery in the circuit court of Ohio count}' on January 31, 1871, making these trustees, Wheat and Brady, and their attorneys, Wheat & Forbes, in whose hands the funds in controversy were, A. II. Detwiler & Co., the other claimants of this fund, and J. B. Detwiler & Co., ior the purpose ot getting a decision by the court of this dispute. The plaintiffsfiled their bill at February rules 1871. But it was lost; and nothing was done in the cause for some twelve years.

After some years Wheat & Forbes, attorneys for the trustees, Wheat and Brady, as nothing had been done by the plaintiffs, Hopkins & Janney, beyond filing their bill, which was lost, determined to pay over the fund in controversy to the claimants of A. H. Detwiler & Co.; but as this suit was still on the docket and not abandoned, they required an indemnifying bond to be given them before paying over the fund, and such bond was given. Some years afterwards, on January 19, 1883, the plaintiffs, Hopkins & Janney, by leave of the court filed a bill to supply the loss of the original bill and the defendants, J. B. Detwiler, A. H. Detwiler & Co. and II. F'orbes, filed answers claiming that this note of $2,480.j00 executed by J. B. Detwiler & Co. to A. H. Detwiler & Co., due July 19, 1886, secured by said deed of trust Was not paid at maturity by J. B. Detwiler & Co., but that at the time, when the debt represented by it was due, it was simply extended for ninety days by a draft drawn by J. B. Detwiler & Co. on Detwiler & English, a Philadelphia firm, of which A. H. Detwiler was the most prominent member. To these answers there was put in a general replication. In reference to this question of controversy the plaintiffs took the deposition of John Wagner who was cashier of the National Bank of West Virginia, where his deposition was taken August 30, 1884, which deposition was excepted to by the defendants. The defendants took the depositions of James W. English, a former clerk of A. H Detwiler & Co.? and of A. II. Detwiler and Isaac Detwiler, of the firm ot A. II. Detwiler & Co. The pleadings and evidence in the cause show all the facts above stated; and in reference to this question in dispute, as to whether this negotiable note of $2,480.00 was or was not paid by J. B. Detwiler, the substance of the statements of the parties and of the...