Jones v. Main Island Creek Coal Co.

• Decision Date: 20 May 1919
• Citation: 84 W.Va. 245
• Parties: Harry P. Jones v. Main Island Creek Coal Company.
• Court: West Virginia Supreme Court

84 W.Va. 245

Harry P. Jones

v.Main Island Creek Coal Company.

Supreme Court of Appeals of West Virginia.

Submitted May 13, 1919.

Decided May 20, 1919

1. Venue "Cause of Action" Statute.

A cause of action within the meaning of § 2 of ch. 123 of the Code consists of a duty upon the part of one toward another, and the violation or breach of that duty. (p. 247).

2. Same West Virginia Circuit Court Jurisdiction Statute.

Under the provisions of § 2 of ch. 123 of the Code the circuit court of any county in which either the defendant's duty to the plaintiff was brought into existence, or in which his breach of duty occurs, has jurisdiction of a suit to recover because thereof, (p. 247).

3. Payment Place Residence of Creditor.

In the absence of an agreement to the contrary the place of the residence of the creditor is the place of payment of a debt. It is the duty of the debtor to s.eek his creditor and make payment to him. (248).

4. Venue Residence of Parties Place of Contract Jurisdiction.

The circuit court of the county in which a contract is made, by which an obligation is imposed upon one of the parties thereto to purchase certain property of the other, has jurisdiction to entertain a suit to recover for the failure to pay for such property, notwithstanding neither of the parties resides in such county at

the time of the institution of such suit. (p. 284).

5. Same Final Installment of Purchase Price Recovery Jurisdiction.

Where by a contract one purchased from another certain property to be paid for in instalments due at certain specified times, and a sufficient amount is paid thereon to meet all of such instalments except the last thereof, the circuit court of the county wherein the creditor resides at the time such last instalment falls due has jurisdiction to entertain a suit for the recovery thereof, (p. 248).

6. Same County Other than that of Defendant's Residence Summons Process.

Where, however, a suit is brought in a county in which the defendant does not reside, upon the ground that the cause of action, or some part thereof, arose therein, process must be served upon the defendant in such county, if he is a natural person. If the defendant be a corporation, the summons may be executed upon it in any county in the state. (p. 248).

Error to Circuit Court, Cabell County.

Assumpsit by Harry P. Jones against the Main Island Creek Coal Company. Issue on plea in abatement submitted to court upon an agreed statement of facts, and judgment for defendant, and plaintiff brings error.

"Reversed and remanded.

Sims & Staker, for plaintiff in error.

Campbell, Brown "Davis, for defendant in error.

Ritz, Judge:

The plaintiff declared on the common counts in assumpsit in the circuit court of Cabell county. The defendant filed a plea in abatement to the jurisdiction, in which it averred that it is a corporation organized and existing under the laws of the State of "West Virginia engaged in the business of mining coal in the county of Logan; that its principal office, place of business, and chief works are in that county, and not in the county of Cabell; and that neither its president nor other chief officer resides in said county of Cabell; and further that the cause of action sued for, nor any part thereof, arose within said county of Cabell, but that the same and every part thereof arose in the county of Logan. The issue made on this plea was submitted to the court in lieu of a jury upon an agreed statement of facts.

From this agreed statement of facts it appears that on the 3rd of June, 1916, the defendant Main Island Creek Coal Company entered into a contract with the plaintiff H. P. Jones, by which it was agreed that said Jones should turn over to the coal company certain shares of stock owned by him in the Jones-Parsons Coal Company, and the said company agreed to employ said Jones as president and general manager of said company, at a salary of $250.00 per month, and if his services should prove unsatisfactory to the defendant, then the said defendant agreed to purchase the stock of said Jones for the sum of $21,000.00, $9,000.00 to be paid in cash, and the balance in six equal installments, evidenced by six notes payable in three, six, nine, twelve, fifteen and eighteen months. This agreement was made in the county of Cabell. Pursuant to it plaintiff Jones was employed as general manager, and his services not proving satisfactory, he was discharged, and the defendant acquired his stock under the terms of the contract. At the time he was so relieved from his duties as general manager he was living at Logan in Logan county. The company paid the cash payment to the said Jones, as provided in the contract, but did not give the notes for the deferred payments, as therein provided. After Jones was relieved as general manager he removed to the county of Boone, and resided there until October or November, 1917, when he removed to the county of Cabell, where he continued to reside at the time of the institution of this suit. Several payments were made on account of the purchase of the stock, one at Charleston, in the county of Kanawha, one at Huntington, in the county of Cabell, and the other sent by mail. On the 5th of September, 1916, in the county of Kanawha, the defendant paid to Jones the sum of $10,940.51, which it contended was in full payment of the balance that it owed. Jones declined to receive this as such full payment, but contended that the defendant still owed him a balance upon account of the purchase of the stock, which is the amount involved in this suit. At this time Jones was residing in Boone county. Shortly...