Jones v. Kessler

• Decision Date: 14 January 1925
• Docket Number: 4993.
• Citation: 126 S.E. 344,98 W.Va. 1
• Parties: JONES v. KESSLER.
• Court: West Virginia Supreme Court

126 S.E. 344

98 W.Va. 1

JONES v. KESSLER.

No. 4993.

Supreme Court of Appeals of West Virginia.

January 14, 1925

Submitted February 26, 1924.

Syllabus by the Court.

When a written contract upon its face is couched in such terms as to import a legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties and the extent of the undertaking were reduced to writing. Parol evidence will not be admitted to vary its terms.

However a written contract may be modified or its terms altered by a subsequent valid oral agreement, and this may be shown in a proper case. As a rule a consideration must be shown.

A verdict which is unsupported by the evidence submitted by the court to the jury should be set aside.

Where there are several charges set up in the declaration for breaches of certain agreements charged to have been made between the plaintiff and the defendant, and the plaintiff introduces evidence on all of said breaches and upon the conclusion of plaintiff's evidence, the court on motion of the defendant, strikes out all of the evidence of the plaintiff, except that which relates to one of said breaches, and the defendant introduces his evidence in defense of that breach only, and the jury finds a verdict on the evidence so stricken out, the verdict should be set aside.

Where the plaintiff claims damages for the breach of a contract, it is necessary to a recovery that he show that he has complied with the contract himself, or that he has been prevented or relieved from compliance by act of defendant; and, if the evidence shows that he has not complied with the terms of the contract, and has not been prevented or relieved therefrom as aforesaid, he will be denied a recovery from the breach of same.

In a suit for the breach of several provisions contained in two separate contracts, where the court upon the trial of the case excludes all of the plaintiff's evidence, except the evidence relative to one of the breaches charged in the declaration, and the defendant makes his defense and offers his evidence in denial of said breach only, and the jury finds a verdict assessing damages for the said breach, and also a separate verdict for the damages based upon the evidence which had been excluded, the verdict should be set aside, unless the plaintiff elects to accept the verdict rendered by the jury upon the evidence properly before it and agrees to remit the damages found by the jury upon the evidence which had been excluded by the court.

Error to Circuit Court, Cabell County.

Action by Arthur S. Jones against A. K. Kessler. From a judgment setting aside verdict and granting new trial, plaintiff brings error. Affirmed.

George I. Neal and George S. Wallace, both of Huntington, for plaintiff in error.

John W. Perry, John S. Marcum, and Holt, Duncan & Holt, all of Huntington, for defendant in error.

WOODS J.

This is an action in assumpsit for the breach of certain contracts alleged to have been made between the plaintiff and the defendant. The declaration contains three counts. The first is the common count in assumpsit. The second count alleges: That on the 6th day of May, 1921, and for some time immediately prior thereto, the plaintiff was located in the city of Cleveland in the state of Ohio, and was engaged in the practice of his profession as orthopedic surgeon; that, in addition to his general practice, he had a number of hospital connections, was enjoying a good practice, and receiving a good return from his professional work, and his practice was steadily growing; that some time prior to the 6th day of May, 1921, plaintiff met the defendant, who was then and is now a physician and surgeon engaged in practice in the city of Huntington, W.Va., and owned stock in the Kessler-Hatfield Hospital and Training School, located at Huntington, W.Va.; and the said defendant, together with Drs. J. E. Rader, C. T. Taylor, and H. D. Hatfield, each owned one-fourth of the stock of the Greater Huntington Hospital Association, a West Virginia corporation, which was operating the Kessler-Hatfield Hospital and Training School at Huntington, and the New General Hospital; and the last-named men had a partnership between them under the terms of which all surgical fees earned by any one of them was placed in a common fund and at frequent intervals was divided among them. At the meeting between this plaintiff and defendant they discussed, at some length, the plaintiff's qualifications and attainments as orthopedic surgeon, and the said defendant became impressed with the idea that, if he could induce the plaintiff to give up his Cleveland connections and move to the city of Huntington, the defendant could by reason of his hospital connections, bring about the organization of a large clinic, and therefore enable this plaintiff to have most valuable experience in and about the practice of his profession, and would add to the general usefullness of the Greater Huntington Hospital Association and its subsidiary institutions. As an incident to this project, the defendant made a proposition in writing to Dr. H. C. Jones, who is the father of this plaintiff, Arthur S. Jones, under the date of May 6, 1921, which is in the words and figures following, to wit:

"Drs. H. C. and Arthur S. Jones, Huntington, W.Va.--Gentlemen: I hereby agree to sell to you a three-fourths interest that I have in the Greater Huntington Hospital Association, that is to say, that Drs. J. E. Rader, C. T. Taylor, H. D. Hatfield, and myself, are equal owners, and I one-fourth, and am selling a three-fourths interest in my one-fourth interest, and also three-fourths of my interest, whatever that may be, in the Williamson Hospital at Williamson, W.Va., and three hundred and seventy-five shares (375) of the capital stock of the Kessler-Hatfield Hospital and Training School, at Huntington, W.Va., conditioned that you pay me twenty thousand ($20,000.00) dollars cash; pay the Union Savings Bank & Trust Company of Cincinnati, Ohio, fifteen thousand ($15,000.00) dollars, or assume the payment of a note that I owe to this bank, and to get me relieved from the further obligation on that note; and to pay to the Ohio Valley Bank, Huntington, W.Va., the 26th day of April, 1921, ten thousand ($10,000.00) dollars that I owe that bank, or to get me relieved from further obligation on that note; and to pay me the balance of the sixty thousand ($60,000.00) dollars within six (6), twelve (12), and eighteen (18) months respectively, from this date, which is to be evidenced by notes bearing 6 per cent. interest from May 6, 1921. This does not include any bills collectable or payable at Huntington, W.Va., to May 1, 1921.

You are to pay your portion, or whatever proportion that I would have to pay, considering the interest that I am selling to you, as that would appear to $31,000.00, notes at Williamson and Logan, W.Va. These notes are probably held by banks at Logan and Williamson, W.Va., and the amount is about $31,000.00.

You are likewise to pay as your interest should appear, the same as I would have to pay, if I did not sell to you any interest, your proportion of whatever indebtedness may have been incurred by equipments, building repairs, etc., at Williamson, W.Va.

This agreement is to be construed to mean that you only are to pay whatever I myself would have to pay, if I did not sell to you any interest, as above indicated."

Which proposition was then and there accepted by H. C. Jones and Arthur Jones, with the modification indorsed thereon that the consideration set out in said proposition should be modified in this: That H. C. Jones and Arthur F. Jones would pay to the said Kessler the sum of $20,000 cash, and would turn over to him three notes made by A. J. Dalton, and John A. Kelley of $5,000, each falling due 6, 12, and 18 months after date respectively, and that the cash payment and these notes were in full of the cash provided for under the terms of said proposal, and that the Joneses were to assume the note of $15,000 in the Union Bank and Trust Company of Cincinnati, Ohio, and the note of $10,000 due the Ohio Valley Bank at Huntington, W.Va.; that said contract was made for the sole benefit of the plaintiff.

The declaration further alleges: That this memorandum in writing did not, at the time it was executed, embody the terms of the contract then and there being considered by the plaintiff and defendant, but it was simply a proposal covering the phase of the contract with reference to the price of the stock and the terms of the payment, and this plaintiff and defendant entered into a contract entirely apart from the written memorandum above set out, under the terms of which last-mentioned contract, in consideration of Dr. H. C. Jones and plaintiff purchasing from the defendant the interest in the several hospitals mentioned in said memorandum in writing above set out, and the defendant then and there agreed that he would cause a statement to be made from the books and accounts of the two corporations, namely, the Greater Huntington Hospital Association and the Kessler-Hatfield Hospital and Training School, as of May 1, 1921, and would furnish the plaintiff with a copy of such statement; that he would organize a new hospital to be located at Logan, W.Va., to be controlled by or operated in connection with the Greater Huntington Hospital Association; that he would then and there turn over to the plaintiff 75 per cent. of the stock owned by him in the Greater Huntington Hospital Association and the Kessler-Hatfield Hospital and Training School, at Huntington, W.Va., and the Williamson Hospital, and agreed to sell, and did sell, to plaintiff an undivided interest in and to...