Lee's Ex'rs v. Virginia & Md. Bridge Co.

• Decision Date: 20 August 1881
• Parties: LEE'S EX'RS v. VIRGINIA AND MARYLAND BRIDGE CO.
• Court: West Virginia Supreme Court

18 W.Va. 299

LEE'S EX'RS v. VIRGINIA AND MARYLAND BRIDGE CO.

Supreme Court of West Virginia.

August 20, 1881

GREEN JUDGE, Absent.^[a1]

1. Upon a demurrer to evidence, where the evidence is wholly that introduced by the plaintiff, the demurrant admits not only the truth of the facts proved, but also all that may be fairly inferred from those facts.

2. L is appointed trustee in equity to sell the real estate of the Virginia and Maryland Bridge Company to satisfy a mortgage on their property. G. represents himself as the president of the company and as acting for it; and at his instance the trustee instead of keeping the property before the public the usual time on the day of sale knocks it down to G. for the amount of the mortgage, principal, interests and costs; the trustee reports these facts to the court, which report is confirmed by the court without exception by the company, which is the only party defendant to the suit; the cash payment of $1,266.66 is paid by G. out of the funds of the company and the first deferred payment also. Held:

Under the circumstances of this case and upon the demurrer to the evidence it may be fairly inferred from the evidence, that G was the agent of the company and authorized to act for it in the premises.

3. G executes his individual note to the trustee for the deferred payments with E. I. Lee as security; the third note not being paid, the trustee sued Lee in West Virginia, recovered judgment and received the money on execution. Lee has a right to recover from the company the amount so paid by him in an action of assumpsit.

4. The record of the suit against the bridge-company, in which appear the decrees under which the property was sold and the sale confirmed, is evidence against the company on the trial of said action as containing a solemn admission or judicial declaration by it of the truth of the facts contained in the record.

5. The receipt of a person entitled to receive money is evidence of the fact of payment in a controversy between other parties as to that payment.

6. Where money has been paid for the use of the defendant, the request necessary may be either express or implied. It will be implied as well as the promise, where the defendant has adopted and enjoyed the benefit of the consideration.

Writ of error and supersedeas to a judgment of the circuit court of the county of Jefferson, rendered on the 30th day of October, 1877, in an action in said court then pending wherein E. I. Lee was plaintiff and the Virginia and Maryland Bridge Company was defendant, allowed upon the petition of said company.

Hon. John B. Hoge, Judge of the third judicial circuit, rendered the judgments complained of.

Patton, Judge, furnishes the following statement of the case:

E. I. Lee brought an action of assumpsit in the circuit court of Jefferson county against The Virginia and Maryland Bridge Company at Shepherdstown, to recover an amount of money alleged to have been paid by him as security for said company. The only evidence introduced upon the trial of the case was introduced by the plaintiff, to which evidence the defendant demurred. The jury found a verdict for the plaintiff for the sum of $1,119.67 with interest from the 11th day of April, 1867, subject to the opinion of the court upon the demurrer to the evidence. The court rendered judgment for the plaintiff for said sum of money, interest and costs. From that judgment the defendant obtained a writ of error and supersedeas.

The evidence in the case consisted of a deed from Blackford to the bridge company in 1849 conveying real estate subject to a mortgage in favor of John Blackford's executors, for the sum of $3,333.33,--the record of a suit in the circuit court of Washington county, Maryland, brought by John Blackford's executors against the Virginia and Maryland Bridge Company in the year 1863 to foreclose that mortgage,--the judgment of the circuit court of Jefferson county in favor of A. K. Syester, trustee, against E. I. Lee upon a note for $1,266.66, executed by J. H. Grove and E. I. Lee on the 21st of September, 1869,--the execution upon said judgment satisfied by Lee,--a deed from the Virginia and Maryland Bridge Company to Zephaniah Bane in 1868 for a portion of their real estate in consideration of the sum of $4,050.00 subject to said mortgage, in which they covenant to appropriate so much of the purchase-money as may be necessary to pay said mortgage,--two receipts, the one dated Hagerstown, September 21st, 1869. " Received of Jacob H. Grove, president of the Maryland and Virginia Bridge Company, the sum of $1,266.66, being first and cash payment on purchase of real estate sold in No. -- in equity," signed by A. K. Syester, trustee, for George Preaner, and the other on the back of a note for $1,266.66 signed by J. H. Grove and E. J. Lee, dated the 21st of September, 1869, payable two years after date to A. K. Syester, trustee, " Received 2d June, 1870, $1,319.37 in full of interest and principal to date; this money has been paid by Mr. Uriah Knode, at the instance of Mr. Grove and with his approbation and the consent of the company," signed A. K. Syester, trustee,--the evidence of Zephaniah Bane, that he paid the cash payment on his purchase for the Virginia and Maryland Bridge Company at Sharpsburg, Maryland, in the office of J. H. Grove to either J. H. Grove of E. I. Lee, both being present, that he took possession and subsequently sold the said property to Uriah Knode, who paid him the cash payment of the purchase-money, and that Knode took possession of the property and still holds it, that he, Bane, made the first or cash payment on his purchase for the Virginia and Maryland Bridge Company, and that Knode made the second deferred payment.

The record in the suit of Blackford's ex'rs v. The Virginia and Maryland Bridge Company shows, that the company was the only defendant; that by its counsel and in pursuance of a written agreement signed by its counsel and the counsel for the complainants its answer was filed consenting to a decree for the sale of the property; that a decree was pronounced for the sale, and A. K. Syester was appointed trustee to sell. In his report the trustee says: " The same was knocked down to Jacob H. Grove, Esq., upon the terms mentioned in the advertisement at and for the sum of $3,800.00, he the said Grove being then and there the highest bidder therefor. But your trustee further reports, that the property was not kept before the public nor the bidding kept open the usual time, in consequence of an assurance by the said Grove, that he was purchasing in the property for the benefit of the defendant and as its president, and the said sum of $3,800.00 being deemed sufficient to pay the mortgage-debt, interest and costs, your trustee was induced to allow the same to be knocked off to the said Grove as aforesaid. Moreover the said Grove represents himself as the president of the defendant, and has been elected as such, and was such at the time of the purchase aforesaid and was representing the said company, the defendant, and at his earnest solicitation on behalf of the said defendant, as well as at the solicitation of Edmund I. Lee, one of the directors of the said company, the defendant, and in behalf of the company, your trustee was induced to close the bidding before the usual time and declare the property to be knocked down as above stated for the said sum." The report of said trustee was ratified by the court.

The subsequent proceedings in the cause show the collection of the money by the trustee and its disbursement, the trustee saying in one of his reports, that he was compelled to sue Lee in West Virginia, from whom he collected the last payment, as surety for Grove.

Travers & Beltzhoover, for plaintiff in error,...