Janes v. Felton

• Decision Date: 08 September 1925
• Docket Number: (No. 5134.)
• Citation: 99 W.Va. 407
• Parties: William Janes v. Mona Burgess Felton
• Court: West Virginia Supreme Court

99 W.Va. 407

William Janes

v.Mona Burgess Felton

(No. 5134.)

Supreme Court of Appeals of West Virginia.

Submitted March 24, 1925.

Decided September 8, 1925.

1. Witnesses Testimony of Party to Agreement With Deceased Person Held Competent in Rebuttal, Denial, or Explanation of Testimony of Administratix of Deceased As to Such Transaction.

Section 23, chapter 130 of the Code, applied, (p. 411.)

2. Contracts' Any Benefit Resulting to Party Promising by Act of Promisee is Ordinarily Sufficient Consideration for Promise; Value of Consideration Need Not Equal Obligation Incurred.

Any benefit resulting to the party promising by the act of the promisee is ordinarily a sufficient consideration for the promise, and it is not essential to the validity of the contract that the pecuniary value of the benefit should equal that of the obligation incurred, (p. 413.)

3. Usury When Contract is Usurious, Stated; "Usurious Contract."

A contract is usurious when any premium, profit, bonus, or charge is exacted or required by the lender in excess of the money actually loaned, which in addition to the interest stipulated, renders the return to the lender greater than the lawful rate of interest, (p. 414.)

4. Same Profit to Lender Which Renders Contract Usurious May be Assumption by Borrower of Payment of Debt to Lender of Insolvent Third Person, Which Borrower is Not Obligated to Pay.

The profit to the lender which renders a contract usurious may be the assumption by the borrower of the payment of a debt to the lender of an insolvent third person, which the borrower is under no obligation to pay. (p. 415.)

5. Same Debtor Cannot Validate Usurious Contract Either by Ratification or Estoppel.

A debtor cannot validate a usurious contract, either by ratification or estoppel, (p. 417.)

Appeal from Circuit Court, Barbour County.

General creditors' suit by William Janes against Mona Burgess Felton, formerly Mona M. Burgess, in which Mrs. Jennie Canter Woods, administratrix of J. Hop. Woods, deceased, sought to collect a note executed by defendant to her intestate. From a decree sustaining defendant's denial of liability as to part of note, Mrs. Jennie Canter Woods appeals.

Affirmed.

Harry H. Byrer and Samuel V. Woods, for appellant. George & Wilcox, for appellee Felton.

Hatcher, Judge:

In a general creditors suit brought against the defendant Mona Burgess Felton, formerly Mona M. Burgess, in the circuit court of Barbour County, Mrs. Jennie Canter Woods, administratrix of J. Hop. Woods, deceased, sought to collect a note executed by the defendant on the 3rd day of September, 1912, to J. Hop. Woods, for the sum of $2,933.96. This note, with its accrued interest, amounted on October 1st, 1923, the date of the decree herein, to the sum of $3,367.20. The defendant admitted liability on the note to the administratrix in the sum of $2,417.25, as of the date of the decree, but resisted payment of the balance claimed. From a decree sustaining the contention of the defendant, Mrs. Woods has appealed.

A memo in writing, dated September 3rd, 1913, signed by J. Hop. Woods and Mona M. Burgess, wTas filed by Mrs. Woods as a part of her deposition, and is as follows:

"It is mutually agreed between J. Hop. Woods, and Mona M. Burgess, that the obligation of $2,-000.00 secured to said Woods by a Deed of Trust of this date executed by said Burgess (single) to Harry H. Byrer, Trustee, is made up of the following four items and the consideration hereinafter mentioned, namely:

First: The sum of $1,000.00 secured to Cora M. Peck by said Burgess, under a deed of trust executed by her to one A. S. Poling, Trustee, dated the 4th day of July, 1908, and recorded in the Clerk's Office of the County Court of Barbour County, in Trust Book 1, page 447, which sum the said Woods has assumed and when paid is entitled to have the said trust assigned to him, or released.

Second: The sum of $536.93, being the amount, at this date, of a certain judgment for $311.77, with interest thereon from the 6th day of November, 1901, and $2.10 costs, rendered on that day by Wm. G. Keys, a Justice of Philippi District, in said County, in favor of said Woods, against J. M. Burgess, now deceased, but then the husband of said Mona M. Burgess, which judgment is docketed in the Judgment Lien Docket of said office in Book No. 4, page 82, as of said date, and upon which execution issued on the 30th day of January, 1906, and was returned "Not executed," and docketed in said office in Execution Docket, on page 76, on February 2nd, 1906, before the death of said decedent, and which judgment and execution have this day been assigned bv said Woods to said Mona M. Burgess, who has assumed the payment thereof for and in consideration of certain good and valuable consideration this day passing from said Woods to said Mona M. Burgess, but without recourse upon said Woods or his estate.

Third: The sum of $27.31 being the amount of a judgment at this date, for $15.00 with interest thereon from the 28th day of April, 1902, and $2.10 costs, rendered on that day by said Justice, Wm. G. Keys, in favor of said Woods, against Olivia Burgess, the step-mother of said J. M. Burgess, (not docketed) this day assigned by said Woods to said Mona M. Burgess, who has assumed the payment thereof, for and in consideration of certain good and valuable considerations this day passing from said Woods to Mona M. Burgess, but without recourse upon said Woods, or his estate.

And, the check of said Woods to said Mona M. Burgess, upon the Peoples Bank of Philippi, for $435.76.

Witness our hands and seals this 3rd day of September, 1913, to duplicates hereof.

J. Hop. Woods (Seal) Mona M. Burgess (Seal)

Mrs. Felton admitted in her deposition that the memo correctly stated the true consideration for the note of $2,000.00. The note for $2,933.96 upon which suit was brought, was the last renewal of the one for $2,000.00, with its accumulated interest. Mrs. Felton stated that shortly before the loan, she employed Mr. Woods, who was an attorney at law, to help her about getting a lien on her property released, and that he was her attorney on September 3rd, 1913. She further testified that neither J. M. Burgess, nor Olivia Burgess, the parties referred to in the memo, owned any property whatsoever at the time of their respective deaths. In a separate deed of trust executed by Mrs. Felton September 3rd, 1920, to secure another party in another transaction, reference is made to her "obligation" to Mr. Woods. Mr. Woods died in the latter part of 1921.

The Commissioner found in favor of Mrs. Woods for the entire amount of her claim, but the circuit court sustained exceptions to the Commissioner's report as to the two items of $536.23, and of $27.30, being the second and third items respectively mentioned in the memo of September 3rd, 1913. These two items, with their accrued interest, amount at the date of the decree to $949.95.

Counsel for Mrs. Woods take the position, (1) that her testimony was incompetent under section 23, chapter 130 of the Code, and being incompetent, did not render competent the evidence of Mrs. Felton, citing Kimmel v. Shroyer, 28 W. Va. 506; and, (2), that by reason of the many renewals of her notes, and of the recognition in the deed of trust of 1920 of the debt she owed Mr. Woods, as well as by her long delay, Mrs. Felton ratified the original transaction, and is now estopped from making her defense thereto. Pusey v. Gardner, 21 W. Va. 469, and other cases are cited, holding that equity generally refuses relief where a party has slept on his rights, and acquiesced for a great length of time.

No valid reason is advanced or perceived why Mrs. Woods could not file as a part of her deposition, the memo, in writing of the transaction of September 3rd, 1913, signed at the time by the parties thereto. The administratrix having given evidence as to that transaction, the evidence of the defendant was thereby made competent under section 23 of chapter 130 of the Code; provided, as Judge Snyder held in Kimmel v. Shroyer, supra, her testimony was "confined to a rebuttal, denial or explanation" of the testimony of the executrix. Mrs. Felton did not rebut or deny the memo., but confirmed the statements therein. She testified, however, that Mr. Woods at the time he took her note for $2,000.00, made it a condition for the loan of $1,500.00 that she was to assume the payment of the $500.00 owed him by her deceased husband. This statement was admissible as an explanation of the circumstances surrounding the making of the contract.

The administratrix offered no evidence relative to the employment of Mr. Woods as attorney by defendant. This employment was a separate transaction from the one of September 3rd, 1913, and therefore, the evidence of Mrs. Felton in regard thereto was not admissible, and cannot now be considered.

Her testimony that neither J. M. nor Olivia Burgess owned any property at the time of their respective deaths was not evidence of any transaction or communication with Mr. Woods; consequently, it is not prohibited by section 23, chapter 130 of the Code.

The charge of laches is not sustained by the facts in this case. The law did not require defendant to present her defense until an attempt was made to collect the note. There has been no change in the condition of the parties by reason of her delay that works a disadvantage to the estate of Mr. Woods. It has not suffered from the loss of evidence or the intervention of equities and other causes. Our determination of the case is based on what transpired on September 3rd, 1913, as recorded at the time by Mr. Woods himself. Browning v. Browning, 85 W. Va. 46

The defendant's brief charges the contract of September 3rd, 1913, with fraud, failure of consideration, and usury. Fraud is not pleaded or proven. Upon the exclusion of defendant's testimony as to the employment of Mr. Woods as her attorney, there remains no evidence in the case of confidential relationship or...