Lane v. Black.

• Decision Date: 28 April 1883
• Citation: 21 W.Va. 617
• Court: West Virginia Supreme Court
• Parties: Lane v. Black.

21 W.Va. 617

Lane

v.Black.

Supreme Court of Appeals of West Virginia.

Submitted August 4, 1882

Decided April 28, 1883.

1. Demurrer to a declaration, on the ground that it does not directly charge, that the plaintiff suffered damage, when such charge is made substantially and not by inference, is properly overruled, (p. 621.)

2. Where an agent buys a claim for his principal, and in order to induce the seller to part with it makes false and fraudulent misrepresentations in reference thereto, and the principal accepts the purchase and takes (he benefit thereof, he cannot while claiming the benefit of the purchase and retaining the claim repudiate said representations of his agent, on the ground that they were not authorized by him and were not within the scope of his authority, (p. 626.)

3. Where an attorney or agent undertakes the collection of a claim for his client or principal and, while such relation exists, buys the claim from his principal, whether false representations were made or not to induce the principal to sell his claim, or even if the claim was sold for an adequate price, the sale is voidable at the option of the principal, (p. 623.)

Writ of error and supersedeas to a judgment of the circuit court of the county ot Jefferson, rendered on the 17th day of June, 1881, in an action at law in said court then pending, wherein John G. Lane was plaintiff, and G. W. Z. Black was defendant, allowed upon the petition of said Black.

Hon. G. J. Faulkner, jr., judge of the thirteenth judicial circuit, rendered the judgment complained of.

The facts of the case fully appear in the opinion of the Court.

Daniel B. Lucas for plaintiff in error cited the following authorities: 2 Rob. Pr. 620, 621, 628; 18 E. L. & Eq. 522;

1 Chit. Plead. 320; Rev. St, IT. S. § 3477; 6 E. L. & Eq. 562; 15 W. Va. 867; 9 Graft, 485; 11 Gratt, 697; Sedg. Dam. (2d. Ed.) 705, 706.

White cf Trapnell for defendant in error cited the following authorities: Story Ag. §§ 134, 135, 137 n. 3, 140: 2 Add. Torts § 1197; Id. § 1209; 7 Gratt. 368; 12 Wall. 470; 2 Pet 364; Story Ag. §§ 244, 250; 2 Gratt. 237: Pal. Ag. 324, 325;

2 Add.Torts § 1310; Story Ag. § 200; 2 Kent's Com. 653; 1 Add. Torts § 570; 2 Add. Torts § 1184; 1 Sm. Lead. Cas. 321 (Am. Note); 18 Pick. 95; 32 Gratt. 293; 2 Add. Torts 1175, 1208; 2 Kent's Com 663; Sedg. Dam. s. p. 556; 32 Graft. 293; Sedg. Dam. s. p. 557: 2 Add. Torts § 1226; 5 Mason 1; 2 Rob. Pr. 618; 1 Chit. Plead. 375, 376, 377; Id. 384; 2 Rob. Pr. 618, 619; Sedg. Dam. s. p. 574.

Baylor &Wilson for defendant in error cited the following authorities: 2 Gratt. 237; 7 Graft. 368; 2 Greenl. Ev. § 66; 6 M. & G. 242; 6 Otto 640; Story Agen. §§ 139, 451; 13 X. H. 145; 11 W. Va. 108; 17 Gratt. 303: 14 Graft. 338; Chit. Contr. 227 and note; 8 Carr. &P. 316; 1 Hill 317; 5 Hill 137; 14 Mich. 208, Johnson, President, announced the opinion of the Court:

This is an action on the case brought by John G. Lane, in February, 1878, in the circuit court of Jefferson county against G. W. Z. Black, laving his damages at one thousand dollars. The first count in the declaration, after stating the formal part, is as follows:" For that, whereas, before and at the time of committing the grievances by the defendant as hereinafter next mentioned, the plaintiff Was the holder and owner ot a claim or demand against the United States for a large amount, to-wit, twenty-seven thousand one hundred pounds of beef theretofore sold and delivered by the plaintiff to the said United States; that the said defendant before and at the time of the committing of the said grievances was doing business as an agent and attorney for the collection of claims against the said government, and as such agent or attorney said defendant had theretofore, to-wit, on the day of-187-undertaken in consideration of certain fees, commissions and reward, the prosecution and collection of plaintiff's said claim: and the said defendant, to-wit, on the--day ot December, 1874, wrongfully and injuriously contriving and intending to deceive, defraud, and injure the plaintiff in this behalf, and to induce the plaintiff to sell the defendant his said claim or demand tor greatly less than its value, falsely and deceitfully, pretended to said plaintiff, that said claim or demand was of much less value than it really was, to-wit, that the sum of three hundred and thirty dollars was a very good price therefor, and'as much or nearly so as plaintiff would realize if the claim was settled and paid.' And then and there by means of false pretenses and misrepresentations as aforesaid, prevailed upon the plaintiff to sell and assign his said claim or demand to the said defendant for the sum of four hundred dollars: when in truth and in fact, before and at the time of the making ot said false and fraudulent misrepresentations, said claim or demand as the defendant well knew had been fully proven, passed upon and allowed as good by the proper authorities of the said United States for a large amount, to-wit, for the sum of one thousand two hundred and thirty-four dollars and forty cents."

The second count sets out more fully the fiduciary relation existing with reference to the said elaim, and the advantages taken thereof by false and fraudulent representations to induce plaintiff to sell and assign said claim to defendant. The third count omits the fiduciary relation, but charges the false and fraudulent misrepresentations to induce the plaintiff to sell and assign his claim to defendant at much less than its value.

At the April term 1879, the defendant demurred to the declaration and each count thereof, which demurrer was overruled, and the defendant pleaded not guilty. The case was tried by a jury, and on the 2d of dune, 1881, the jury rendered a verdict for the plaintiff, and assessed his damages at seven hundred and nine dollars and thirty-three cents. The defendant moved iora new trial, which motion the court overruled and entered judgment upon the verdict. The defendant during the trial took four several bills of exceptions to the ruling of the court in giving, refusing and modifying instructions. To the judgment the defendant obtained a writ of error.

The first error assigned is, the overruling of the demurrer to the declaration. It is urged, that each count of the deflation is fatally defective because it is claimed that the declaration does directly allege, that the price of four hundred dollars, for which the plaintiff sold his claim was an adequate price, and therefore there is no charge, that damage was sustained. As to the first two counts this was unnecessary as the plaintiff had a perfect right, in view of the fiduciary relation, that existed between plaintiff and defendant, to repudiate the sale without reference to the question of the adequacy of the price received. Newcowb v. Brooks, 16 W. Va. 32. But it seems to us, that it is clearly charged in all the counts, that he suffered damage. In the first count, and the others are similar, it is charged, that in order "to induce the plaintiff to sell the defendant his claim or demand at greatly less than its value defendant falsely represented said claim as of very much less value than it really was. * * And then and there by means ot such false pretenses and misrepresentations as aforesaid, prevailed upon the plaintiff to sell and assign his claim or demand to the said defendant for the sum of four hundred dollars, when in truth and in fact, before and at the time of the making of said false pre- tenses and fraudulent misrepresentations, said claim or demand as the plaintiff well knew had been fully proven, passed upon and allowed as good by the proper authorities of said Tinted States tor a large amount, to-wit, for the sum ot one thousand two hundred and thirty-four dollars and forty cents," and alleges that his damages are one thousand dollars. The demurrer to the declaration was properly overruled.

The third hill ot exceptions first sets out the receipt of the plaintiff for the beef sold to the United States, signed by an officer thereof and dated the 5th day of August, 1862, which voucher closes as follows: "And the same will be paid for after the close ot the present war upon proof, that the said John G. Lane is and has remained a loyal citizen of the United States during the war." Then follows certificates from the treasury department of the Tinted States as to said claim, among which is this: "Treasury Department, Third Auditor's Office, December 1, 1874. 1 certify there is due from the United States to.John G. Lane tor fourteen thousand nine hundred and five pounds net of beef at nine and eleven-one-hundredths cents per pound, August 5, 1862, one thousand two hundred and ninety-four dollars and fortytwo cents/' which first receipt the bill of exceptions certifies is the same receipt or voucher called the plaintiffs claim in the instruction, to which the exception is taken, and the evidence tended to supportthe hypothesis of the said instruction, whereupon the court at the instance of the plaintiff instructed the jury, that."if the plaintiff was induced to sell his claim against the United States government to the defendant by positive false representations of a material fact or facts, by the defendant or his agent, or the concealment of material facts, which it was the duty of the defendant or his agent to communicate to him, then neither the question of the plaintiff's loyalty to the United States government nor his ownership of the cattle, for which the receipt or voucher was given can be considered by the jury in determining the issue in this case." To the giving ot which instruction the defendant excepted. The instruction is clearly right. If the claim had been actually allowed to the plaintiff, John G. Lane, by the government ot the United States then under the issue in this case it could not be material, whether Lane really owned the cattle he sold to the government, or whether he was or was not loyal to the government of...