Koon v. Sampson, 2312

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: RINER, Justice.
• Citation: 61 Wyo. 498,159 P.2d 366
• Decision Date: 28 May 1945
• Docket Number: 2312
• Parties: EVELYN K. KOON, Plaintiff and Appellant v. LLOYD C. SAMPSON, also known as L. C. SAMPSON, Defendant and Respondent

159 P.2d 366

61 Wyo. 498

EVELYN K. KOON, Plaintiff and Appellant
v.
LLOYD C. SAMPSON, also known as L. C. SAMPSON, Defendant and Respondent

No. 2312

Supreme Court of Wyoming

May 28, 1945

APPEAL from District Court, Laramie County; V. J. TIDBALL, Judge.

Action by Evelyn K. Koon against Lloyd C. Sampson, also known as L. C. Sampson, to recover amount allegedly due on account of a contract for sale of certain law books by plaintiff's assignor to the defendant. From a judgment for defendant, the plaintiff appeals.

Affirmed.

For the plaintiff and appellant the cause was submitted upon the brief and also oral argument of Charles E. Lane of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR APPELLANT.

An affidavit of defense admitting at the outset an indebtedness of a certain amount, but asserting in the conclusion that the defendant does not owe the plaintiff a cent, is clearly contradictory. 4 Pa. Dis. R. 440.

The only limitation upon the pleading of inconsistent defenses seems to be the requirements that the pleadings of fact must be verified (with certain exceptions) by affidavit of the party, his agent or attorney, to the effect that he believes the statement to be true. Wyoming Construction Company v. Buffalo Lumber Co., 25 Wyo. 158, 166 P. 391.

When two alleged grounds of defense contradict each other, they are not susceptible of verification, because it is impossible for both to be true. The verification of one is the falsification of the other. In such a case the answer, though sworn to, is not 'verified,' and should, on motion be stricken from the files, or the defendant put to his election. Citizens' Bank v. Closson, 29 O. St. 78.

The law in relation to denials of assignments is well settled in Cottle v. Cole and Cole, 20 Iowa 481 Richards v. Morris Canal, 18 N. J. L. 250; Fosdick v. Croff, 22 How. Pr. 158; 12 Am. S. R. 131; 55 A. 165; 12 S. 526; 1 Blackf. 69; 2 Bibb 126; 5 Mo. 54; 139 N.Y.S. 1002.

The plaintiff is prejudiced because the court did not take the time to study this case. The case was amply proved by the admissions of the defendant and his evidence at the trial. First Nat. Bank v. Citizens State Bank, 11 Wyo. 53, 54; School Dis. v. Western Tube, 13 Wyo. 319-322; Hilliard v. Douglas Oil Fields, 20 Wyo. 215.

Defendant did not deny specifically the execution of the written contract on which this suit is based. 20 Ia. 481.

For the defendant and respondent the cause was submitted upon the brief and also oral argument of Ray E. Lee of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT.

The assginment alleged in the original petition is a nullity for two reasons shown upon the face of the pleading. In the first place, the assignment is made by The Banks-Baldwin Law Publishing Company which is not a party to the contract, and which is not shown to have any interest in the contract; and in the second place, the assignment is made to a man who had been dead for many months prior to the date of the assignment. A conveyance of property to a dead man is absolutely void. Baker v. Lane, 109 P. 182; Hunter v. Watson, 12 Cal. 363; Neal v. Nelson, 23 S.E. 428; Bartlett v. Brown, 25 S.W. 1108; Davenport v. Lamb, 20 L.Ed. 655; Holder v. Elmwood Corp., 165 So. 235; Duffield v. Duffield, 108 N.E. 673; Aetna Life Ins. Co. v. Hoppin, 94 N.E. 669.

It is a general rule that in every transfer of title, there must be an actual or constructive delivery of the thing, or paper title thereto, with intention to pass title, and there must be an actual or constructive acceptance of the transfer so as to pass dominion to the assignee. Hull v. Hull, 159 N.Y.S. 743; Maney v. Cherry, 41 P. 2d. 82; Poff v. Poff 104 S.E. 719; Duryea v. Harvey, 67 N.E. 351.

It is a well settled principle of law that a person cannot contract with himself although he may be acting in different capacities when he makes the contract. Smith v. Kirkpatrick Finance Co., 28 S.W. 2d. 1050; Groub v. Blish, 153 N.E. 895; Bank of Butler v. Allen, 125 S.W.2d 829; Robertson v. Vandalia Trust Co., 66 S.W. 2d. 193; Gordon Campbell Petroleum Co. v. Gordon Campbell-Kevin Syndicate, 242 P. 540; Sniclair Refining Co. v. Long, 32 P. 2d. 464; Acker v. Watkins, 134 S.W. 2d. 523; Burditt v. Colburn, 22 A. 572.

It is also a general rule that an executor or administrator cannot lawfully purchase property from himself as such executor or administrator. French v. Woodruff, (Colo.) 34 P. 1015, 24 C. J. 633, Sec. 1590. 21 Am. Jur. p. 730, Sec. 622.

The court will not reverse the decision of the trial court when the evidence is conflicting, and when there is evidence tending to sustain the findings of the court, unless the findings of the court are so clearly against the weight of the evidence as to make it manifest that the evidence was entirely disregarded, or that the court was influenced by passion or prejudice, or acting from some improper motive. Ketchum v. Davis, 3 Wyo. 164, 167. Wilson v. Schoonover, 55 Wyo. 510.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION [159 P.2d 367]

[61 Wyo. 502] RINER, Justice.

This proceeding by direct appeal was brought to review a judgment of the district court of Laramie County, in an action wherein Evelyn K. Koon was plaintiff, and Lloyd C. Sampson, was defendant. The case was tried to the court without a jury, and upon the conclusion of plaintiff's evidence, defendant having moved for judgment in his favor, this motion was sustained and a judgment against the plaintiff was entered.

The action aforesaid was brought to recover a sum of money alleged to be due on account of a contract for sale of certain law books by plaintiff's assignor to the defendant who is an attorney at law. The defense was that nothing was due plaintiff on this contract on account of the failure of the vendors to perform the terms thereof and also on account of a settlement had between the parties which concluded the matter and released the defendant from any further liability thereon.

The testimony of but two witnesses was presented to the trial court, that of the defendant called for cross-examination and that of counsel for the plaintiff. At the conclusion of their testimony the motion mentioned above was made with the result as stated. The facts disclosed by the testimony of these witnesses and the other evidence introduced in connection therewith are substantially as follows:

On October 5, 1927, the defendant signed an order form partially printed, partially in handwriting and [61 Wyo. 503] partially in typewriting, which directed the delivery to him "carriage paid, a complete set of United States Supreme Court Reports, Official Edition Reprint, consisting of volumes 1 to 271 Official Edition in 28 books, at 99c per official volume (271 x 99c=$ 268.29)". He agreed to pay for said books the sum of "$ 5.00 monthly first year; $ 7.50 monthly second year; and then $ 10.00 monthly until paid, without interest." The contract then stated "Also enter my subscription for advance parts and bound volumes of the Reports of the United States Supreme Court, to be delivered to me as issued, for which I agree to pay $ 6.00 per year. Continue my subscription until otherwise advised." These books were to remain the property of "your company or your assigns" until paid for. Provision was made for declaring the balance of installments due in case of failure to make any one within 60 days after maturity. The order and the defendant's acceptance thereof were to constitute the entire contract. The principal portion of this order form was printed, the terms above stated for payments under it were in handwriting and in the margin were written in typewriting the names "Banks Law Pub. Co., N. Y." and "W. H. Courtright Pub. Co." At the bottom of this order form are also written in blue pencil the words "Chge. to Courtright." [159 P.2d 368]

This contract is alleged in plaintiff's pleading to have been assigned to her by the "Banks Law Pub. Co." and a written assignment to that effect was offered in evidence by plaintiff's counsel but it seems to have been rejected by the court. There appears to be no proof that the W. H. Courtright Pub. Co. transferred any interest in the contract to the plaintiff. Also the assignment pleaded by plaintiff in her "second amended petition", the pleading upon which the case was tried for the plaintiff, states that it was "signed, sealed and delivered this 1st day of October, A. D. [61 Wyo. 504] 1942". It purports to be signed by "The Banks Law Pub. Co., by W. E. Baldwin, President", and this signature is attested by Margaret A. Ziegler, Secretary. There is attached thereto an acknowledgement by W. E. Baldwin as such president which also...