Leckie. v. Bray

• Decision Date: 12 September 1922
• Docket Number: C. C. 202.
• Court: West Virginia Supreme Court
• Parties: W. S. Leckie et al. v. L. G. Bray.

91 W.Va. 456

W. S. Leckie et al.

v.L. G. Bray.

C. C. 202

Supreme Court of Appeals of West Virginia.

Submitted September 6, 1922.

Decided September 12, 1922.

1. Pleading Count in Declaration Founded on Untenable Interpretation of Written Contract Insufficient.

A count in a declaration setting up a demand founded only upon an interpretation of a written contract set forth in it at length, which is not tenable and cannot be sustained, is insufficient in law, and a demurrer thereto is properly sustained. (p. 459.)

2. Contracts Written Contract Cannot be Changed by Construction. Unless Founded on Express Terms or Fair Implication.

No addition to the terms of a written contract, or transposition or modification thereof, can be made by construction, unless it has foundation in the written words of the paper or in a reasonable and fair implication arising out of such words or some provision thereof or purpose expressed by it. (p. 459.)

3. Pleading Count of Declaration, Disclosing Demand Founded Solely on Allegations Sustainable by Inadmissible Evidence, Demurrable.

If a count in declaration discloses on its face that the demand therein stated is founded solely upon allegations of fact to be sustained by inadmissible oral evidence, and not otherwise, objection thereto may be interposed by demurrer, (p. 459.)

4. Evidence Oral Evidence of Contemporaneous Verbal Construction of Unambiguous Written Contract, Inadmissible. Oral evidence of a contemporaneous verbal construction of an unambiguous written contract, is inadmissible. (p. 460.)

5. Same Warranty Cannot Be Ingrafted on Deed for Leasehold by Parol Evidence.

The grantee in a deed by which a leasehold interest is transferred to him, in consideration of money paid and to be paid in installments for which notes are given, cannot engraft upon the instrument, by oral evidence, a warranty of the value or qualities of the lease, even though the deed contains a provision clothing the grantor with a power of defeasance, in the event of non-payment of the notes, by saying that in such case, the agreement (deed) "shall become null and void." (p. 462.)

Action by W. S'. Leckie and others against L. G. Bray. Order sustaining demurrers to the declaration. Case certified.

Affirmed.

Goodykooniz, Scherr & Slaven and Okey P. Keadle, for plaintiffs.

Bias & Chafin, for defendant.

poffenbarger, president:

Whether either or both of two special counts in a declaration in assumpsit are sufficient is the question submitted upon this statutory certificate. Demurrers to them, as they stood in the original declaration and in an amended declaration, were sustained.

Both are based upon a provision in a deed by which the defendant assigned and transferred to the five plaintiffs, his interest in a certain coal lease and the improvements thereon, in consideration of $7,000.00, of which $2,000.00 was paid in cash and the residue deferred in three equal installments evidenced by negotiable notes payable, respectively, in three, six and nine months from their common date, Oct. 14, 1920. Though denominated a "contract of agreement," the instrument by which the transfer was effected is an inter partes deed, an indenture. It sells and conveys the property and contains an habendum clause; but there is a condition in it expressed in these terms:" It is also agreed that if the above mentioned purchase money notes be not paid at maturity, then this agreement shall become null and void.'' They were not paid at maturity, but were paid by the makers, after maturity, to transferrees of the payee, who had taken them for value, in good faith and without notice of the provision just quoted, upon which the two counts in question are founded. The purpose of the action is recovery from the defendant, the transferror of the notes, the amount thereof, with interest and costs, upon the theory of a wrongful transfer.

After a full recital of the terms of the deed, the second of the three counts alleges it was understood and agreed, in and by the instrument, that, if the leasehold interest so conveyed "should become an unprofitable venture and could not be worked profitably as a coal mining plant," the grantees, upon written notice of their intention so to do, might abandon the property and surrender their rights, whereupon the agreement should become null and void and the notes and debts represented by them "become cancelled and of no effect"; that the defendant, "by said agreement in writing," in consideration of said money and notes, agreed that the plaintiffs should have such right of abandonment and surrender and that, in such case, he would not transfer the notes; and that the plaintiffs, finding the lease unprofitable, did abandon the property and surrender their right, after notice of their intention so to do, but that the defendant, nevertheless, in violation of his agreement, transferred the notes to innocent persons to whom the plaintiffs had been compelled to pay them.

The third count sets up a verbal agreement of the tenor and purport of that claimed in the second and then charges that the parties, having entered into it, had it reduced to writing by a scrivener who, in attempting to express the stipulation for right of abandonment and surrender, chose and adopted the language of the forfeiture clause above quoted, which both he and the defendant represented to the plaintiffs was a correct and sufficient expression of the agreement as it had been verbally made; and that the plaintiffs believed the representation so made to be correct, and, in reliance thereon, had accepted the conveyance, paid the money and executed the notes. This is followed, of course, by allegations of the ground of abandonment, notice, abandonment and transfer of the notes in violation of the agreement, etc.

These two counts were not materially altered by the amendments thereof. The additional allegation in each of them is that, having been compelled by legal process to pay the first note with interest and costs, the plaintiffs paid the other two without their having been reduced to judgments.

In the cardinal rules of interpretation, as stated in the books, there is an implied limitation of the effect, scope and operation of the instrument construed to its terms and provisions. Scraggs v. Hill, 37 W. Va. 706; Tichenell v. Jackson, 26 W. Va. 460; Heatherly v. Farmer's Bank, 31 W. Va. 70. Things not within the letter of a contract are sometimes included in it and effectuated, because they are clearly within its expressed purpose or its spirit. Raleigh Lumber Co. v. Wilson & Son, 69 W. Va. 598, 603; Gas Co. v. Oil Co., 56 W. Va. 402. But there is no authority for any addition to the terms of a written instrument, or transposition or modification thereof, unless it has foundation in the written words of the paper or in a reasonable and fair...