Jones v. Hoard

• Decision Date: 03 December 1929
• Docket Number: (No. 6487.)
• Citation: 151 S.E. 183
• Court: West Virginia Supreme Court
• Parties: JONES. v. HOARD et al.

151 S.E. 183

JONES.

v.HOARD et al.

(No. 6487.)

Supreme Court of Appeals of West Virginia.

Dec. 3, 1929.

Rehearing Denied Jan. 13, 1930.

(Syllabus by the Court.)

Appeal from Circuit Court, Wayne County.

Suit by H. C. Jones against S. Floyd Hoard and others. Decree for defendant, and plaintiff appeals. Reversed.

Jo N. Kenna and A. M. Belcher, both of Charleston, for appellant.

Fitzpatrick, Brown & Davis and Holt & Holt, all of Huntington, for appellees.

WOODS, P. This suit was brought in the circuit court of Wayne county to recover $15,000 deposited as a consideration for an option, on the ground that the option was never given. On the hearing of the cause, the chancellor directed the entry of a decree for the defendants, and dismissed plaintiff's bill. It is from such action that this appeal is taken.

The principal questions with which we are confronted are: (1) Was the option in its final form ever accepted; and (2) was it ever executed and tendered in the manner contemplated?

I. At the time Jones approached Hoard on the question of an option on June 9th, the former was presented with a draft of a formal option, similar in most respects to the one subsequently dictated by Judge Campbell. As Jones stated, on cross-examination by Judge Holt, regarding the rejected paper, there were several things to which he would not agree, one of which was the provision that: "If on or before the expiration of theninety (90) days option, the said H. C. Jones and J. Walter Webb decide to purchase, they shall as confirmation of said decision make a further payment to said S. Floyd Hoard as the representative of the owners, a further sum of Ten Thousand Dollars ($10,000.00), in current funds, as guarantee of good faith, which sum together with the sum paid at the execution of this writing, shall be forfeited to said owners of said lands, if said H. C. Jones and J. Walter Webb and associates fall, to fully consummate the purchase of said lands, as herein provided for and within the time limits mentioned herein; and if said H. C. Jones and J. Walter Webb and their associates do fully consummate the purchase of said lands as provided for herein, and within the time limits provided, then the said sums which have been paid to said S. Floyd Hoard, shall be deemed as a part of the purchase price of said lands." And on this point no one denies his statement. It is apparent that Hoard's draft did not meet with Jones' approval, or it would have been accepted by Jones at the time. And as to the differences we only have Jones' statements. However, before the conference was over, Jones did put up a check for $15,000, as a consideration for an option thereafter to be drawn up and reduced to writing. This check was accepted by Hoard on the express understanding set out in his receipt that a 90-day option was to be prepared "upon terms and conditions which are to be reduced to writing by said Jones and Hoard, " in which Hoard's associates in title were to join, giving Jones the right to purchase the land at $40 per acre. Certain provisions regarding the use and forfeiture of the $15,000 were also incorporated in the receipt. So far as the memorandum goes, it was undoubtedly binding upon the parties in the drafting of the option itself. But, in view of the undisputed testimony regarding Jones' objection to certain provisions in Hoard's original draft, the memorandum intimates that all the terms had not been definitely agreed upon, or if they had that the $10,000. "good faith" item had been omitted. In other words, Jones made the deposit of the $15,000 check in anticipation of an option agreeable to him, a few general points agreeable to both parties having been recognized and incorporated in the receipt, in the hope of later arriving at an understanding as to the terms of payment, and the ironing out of any differences between them. The next day Hoard, Webb, Jones, and Napier went to the office of Judge Campbell, in the city of Huntington, who dictated a formal option in the presence of both parties, which was subsequently extended, a copy thereof signed by Hoard, and forwarded for execution to his associates in title—the heirs at law of Kate A. Baldwin, deceased. The draft, as dictated, however, was not put in writing until two days afterward. Jones says that thereupon Hoard presented it to him and wanted him to sign it, but that he refused to do so, or to accept it, stating to Hoard that he desired to go over it with his attorneys. This statement stands on the record undenied, as Hoard did not take the stand as a witness. The writing on its face purports to be between the Hoards, and his associates in title (the heirs of Kate A. Baldwin, deceased), parties of the first part, and the plaintiff and Webb, parties of the second part. It concludes with the usual provision: "Witness the following signatures and seals." It would seem, therefore, that the signing by all parties to the instrument was intended. On June 19th, Hoard advised Jones by letter that Mr. Baldwin, one of the three heirs at law, had executed the paper as "sole executor" of his mother's estate. The letter states further: "If you and Mr. Webb will make an appointment to meet me at Huntington or here (Ceredo), at your earliest convenience, and let me know in advance, I will arrange to meet you. Jones replied on June 21st: "My attorney is preparing an option that will be satisfactory to us which we hope to send you tomorrow." The option, as executed by the parties of the first part, was mailed to Jones at Charleston on July 16th, a month and seven days after its dictation, by registered mail, and Jones sought out Hoard two days later at Ceredo, told him the option was not acceptable to him, and that he would not accept it. A demand was made on Hoard at the same time to return the $15,000, which the latter refused to do.

The position is taken by Jones that he never agreed to all the terms set out in the final draft; especially the $10,000 "good faith" item, as it amounted to an additional burden not contemplated in the memorandum. The fact that such item was to be forfeited in case Jones failed to consummate the deal amounted to an additional burden. The memorandum specifically referred to the forfeiture of the $15,000 in case the option to purchase was not consummated. It seems reasonable that if any such additional forfeiture was contemplated, it would have been incorporated therein. To the extent of justifying the insertion of this provision, at least, the burden was cast upon the defendants to show an acceptance of the change which was made to Jones' detriment. The defendants rested their case on this point on Webb's testimony alone. Webb at this time was no longer a partner of Jones. He had dropped out because he could not meet his portion of the financial obligation, and was smarting under the fact The following excerpt from his testimony shows his bias:

"Q. You say that Dr. Jones agreed to the dictation of that paper? A. He did.

"Q. That was prior to having seen a transcript or copy of the dictation. A. Why certainly."

Webb also says that Jones never made complaint to him later about the paper not being satisfactory. This latter fact, if true, losesits effect as substantive evidence in the light of the differences that had arisen between the parties. Jones was no longer taking Webb into his confidence. Have the defendants borne the burden of showing a preponderance? "Preponderance" is with the side where the facts sworn to are, most consistent with the probability of...