Kanawha Banking & Trust Co. v. Gilbert

CourtSupreme Court of West Virginia
Citation46 S.E.2d 225,131 W.Va. 88
Docket Number9873.
PartiesKANAWHA BANKING & TRUST CO. et al. v. GILBERT et al.
Decision Date20 December 1947

Rehearing Denied March 5, 1948.

Appeal from Circuit Court, Wyoming County.

Syllabus by the Court.

1. Extrinsic evidence of statements and declarations of the parties to an unambiguous written contract occurring contemporaneously with or prior to its execution is inadmissible to contradict, add to, detract from, vary or explain the terms of such contract, in the absence of a showing of illegality, fraud, duress, mistake or insufficiency of consideration.

2. An unambiguous written contract entered into as the result of verbal or written negotiations will, in the absence of fraud or mistake, be conclusively presumed to contain the final agreement of the parties to it, and such contract may not be varied, contradicted or explained by extrinsic evidence of conversations had or statements made contemporaneously with or prior to its execution.

3. When a written contract is clear and unambiguous its meaning and legal effect must be determined solely from its contents and it will be given full force and effect according to its plain terms and provisions. Extrinsic evidence of the parties to such contract, or of other persons, as to its meaning and effect will not be considered.

4. A valid written contract, entered into between trustees and a firm of attorneys for legal services to be rendered by the firm for the benefit of the trustees and their successors and the beneficiaries of the trust, with respect to designated lands of the trustees, so long as the lands are owned by them, is a contract for personal services and terminates upon the death of the last surviving member of the firm.

FOX P., dissenting.

M O. Litz and Harold A. Ritz, both of Charleston, for appellants.

J. M. Woods and Spilman, Thomas & Battle, all of Charleston, for appellees.


This case is here on appeal from the final decree of the Circuit Court of Wyoming County, entered February 18, 1946, which granted to the plaintiffs the relief prayed for in their bill of complaint. The plaintiffs, Kanawha Banking and Trust Company, and others, are the representatives and the beneficiaries of the deceased members of the one time law firm of Couch, Flournoy and Price. The defendants are John Gilbert, Francis L. Plumley and Samuel H. Gilbert, Trustees, successors to the original trustees, and numerous other persons as beneficiaries under a deed dated November 21, 1882, made by Theresa E. Patterson, Trustee, and others, to William G. Boulton, Charles S. Whelan and Francis Lasher, Trustees, which conveyed a tract of 36,750 acres of land in Wyoming and McDowell Counties, West Virginia, in trust for the purposes stated in that deed. The principal issue involved is the character and the legal effect of a written contract, dated December 15, 1896, entered into between attorneys and clients, the parties to which, as clients, were Charles S. Whelan, George F. Lasher and John Wagner, Trustees, and, as attorneys, the law firm of Couch, Flournoy and Price, of Charleston, then composed of George S. Couch, S. L. Flournoy, George E. Price and Harrison B. Smith. George S. Couch soon afterwards retired as a member of the firm and Harrison B. Smith succeeded to his interest under the contract. All the members of the firm died prior to February, 1944, the date of the institution of this suit.

The bill of complaint, which was later amended by a court order, in substance alleges that the contract conferred upon the attorneys a vested undivided one tenth interest in the 36,750 acres of land and prays for the adjudication of that interest in favor of them and their successors and beneficiaries. The defendant trustees, by their answer, denied that the contract vested in the attorneys any interest in the land and charged that the contract by its terms provided that the payments of ten per cent of the proceeds derived from the sales and the income from the land were to be made for future legal services to be rendered by the attorneys. By that part of their answer which is in the nature of a cross bill the answering defendants alleged that there was fraud upon the part of the firm in the procurement of the contract, and that the payments of ten per cent were in excess of a reasonable compensation for the legal services rendered, and prayed for judgment in their favor against the plaintiffs for the amount paid which exceeded a fair compensation for the services rendered by the attorneys under the contract. The plaintiffs by their answer denied this claim of the defendants in their answer in the nature of a cross bill. Other defendants filed an answer, which was also in the nature of a cross bill, to which the plaintiffs filed a replication and an answer, and the defendants filed their replications to the answers of the plaintiffs to the cross bills of the defendants. The defendant trustees, at the time of oral argument and submission of the case in the circuit court, filed a supplemental answer to which the plaintiffs replied generally. The issues raised by these subsequent pleadings were substantially those presented by the original bill of complaint, answer and replication.

The case was heard upon the foregoing pleadings, upon the issues joined, and upon depositions taken and filed respectively by the plaintiffs and the defendants. The depositions in behalf of the plaintiffs, to which the defendants duly objected, consisted in the main of letters passing between some of the attorneys and between them and some of the trustees before and after the execution of the written agreement of December 15, 1896, and other writings, which were offered by the plaintiffs to sustain their contention that its meaning and effect were to confer upon the attorneys a vested interest in the land.

By its final decree the circuit court held that the letters and the other documents offered by the plaintiffs were admissible; that the contract of December 15, 1896, granted to the law firm of Couch, Flournoy and Price an equitable title to an undivided one tenth of the tract of 36,750 acres of land, and that the claim of the defendants for the recovery of payments made by them which were alleged to be in excess of a reasonable amount for the services rendered by the attorneys under the contract should be denied. It also held that the defendant trustees were accountable to the plaintiffs for ten per cent of the net proceeds received by them from the land for which they had not accounted; that in future distributions they should account to the plaintiffs for dividends and for ten per cent of the net proceeds hereafter realized from the land; and that the plaintiffs recover their costs from the defendants. The decree further provided that neither the costs awarded the plaintiffs nor the costs incurred by the defendants should be paid from the interest of the plaintiffs in the proceeds realized from the land, and that the costs were a personal liability of the beneficiaries claiming under the deed of November 21, 1882, and a lien upon their respective interests in the unsold portion of the 36,750 acre tract of land, which now comprises about 20,600 acres.

To reverse the final decree of the circuit court the defendants who prosecute this appeal assign these errors: (1) Denial of the claim of the defendants; (2) admission of extrinsic evidence to change, vary and modify the written contract of December 15, 1896; (3) adjudication that the contract vested in the firm of Couch, Flournoy and Price ten per cent of all the property held by the trustees and that their rights did not terminate upon the death of Harrison B. Smith; and (4) rejection of the contention of the defendants that the contract was for personal services and ended with the death of the last surviving member of the firm.

A complete and detailed narrative of the events which led to the making of the contract and those which followed it until the institution of this suit, a period of more than 70 years, is unnecessary to the decision of the questions upon which this case turns and would unduly extend the length of this opinion. A summary of the most important matters, however, is proper to present and clarify the material facts and circumstances.

Though the prior history of the 36,750 acre tract of land, which goes back to two original patents from the Commonwealth of Virginia to Robert Morris for 320,000 acres and 480,000 acres in 1795, is interesting, the beginning point, for the purposes of this case, is the year 1871. At that time, as part of a tract of 45,150 acres, the tract of 36,750 acres was sold by the Sheriff of McDowell County for delinquent taxes for the year 1869, in the name of Michael Bouvier. This sale was later held to be void because of fatal defects and irregularities with which it was affected.

In 1881, in a school land proceeding in the Circuit Court of Wyoming County 47 parcels of the 36,750 acre tract, aggregating 23,092 acres, were sold and conveyed to L. B. Cook, John W. McCreary, Joseph Short, William Short, A. J. Ellis and R. T. Lusk.

By deed dated November 21, 1882, Theresa E. Patterson, Trustee, and others, conveyed the 36,750 acre tract to William G. Boulton Charles S. Whelan and Francis S. Lasher, Trustees, and their successors, in trust: 'to hold the same until a favorable opportunity, in the discretion of said Trustees, shall appear to sell and dispose thereof, and, then, with the written consent of the parties interested in the proceeds of such sale, to grant and convey said premises, or parts and parcels thereof, so sold to the purchasers thereof, their heirs and assigns forever, free and clear of any trust whatsoever', and to...

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