Lilly v. Ellison

• Decision Date: 21 May 1929
• Docket Number: 6359.
• Citation: 148 S.E. 380,107 W.Va. 402
• Parties: LILLY v. ELLISON.
• Court: West Virginia Supreme Court

148 S.E. 380

107 W.Va. 402

LILLY v. ELLISON.

No. 6359.

Supreme Court of Appeals of West Virginia.

May 21, 1929

Submitted May 15, 1929

Syllabus by the Court.

A son-in-law and partner of the plaintiff in a suit by the latter to recover judgment against the administrator of the person to whom the loan was made is not excluded from testifying about the details of the loan by section 23, c. 130, Code, either because he is a son-in-law and partner or because he consented to the use by the father-in-law of the firm's money in making the loan; it clearly appearing that the money of the firm so used had been accounted for in a settlement of the partnership accounts. The son-in-law has no interest in the result of the litigation which would exclude his testimony concerning the transaction between the lender and borrower.

Error to Circuit Court, Raleigh County.

Action by Prince E. Lilly against J. S. Ellison, administrator of T L. Blankenship. From the judgment, defendant brings error and plaintiff assigns cross-error. Affirmed.

C. W Dillon, of Fayetteville, and Carl C. Sanders, of Beckley, for plaintiff in error.

Kyle D Harper and John Q. Hutchinson, both of Beckley, for defendant in error.

LIVELY J.

Lilly sued Ellison, administrator of T. L. Blankenship, in assumpsit for the recovery of an alleged loan of money made by Lilly to Blankenship on March 25, 1922, for $4.202; and for an additional sum of $6,000, which he claimed grew out of a written contract concerning the purchase and sale of coal in 40 and 25 acres in Raleigh county. The issue was tried by a jury, which returned a verdict in favor of Lilly for $5,668.93, being the amount of the alleged loan, with the interest thereon; but found against the plaintiff on the $6,000 claim arising out of the written contract. Ellison, administrator, moved the court to set aside the verdict and grant a new trial for reasons stated in the motion, which was overruled, and judgment entered on the verdict, from which judgment the administrator prosecutes this writ of error.

The ground on which the motion to set aside the verdict was based is the introduction of evidence of John Hornbrook concerning the alleged loan which defendant claimed was inadmissible, because Hornbrook was interested in the result of the litigation, and his evidence was therefore inadmissible under section 23 of chapter 130 of the Code, which makes inadmissible the evidence of any one interested in the litigation testifying to any personal transaction with a person deceased at the time of giving the evidence. This is the main ground on which reversal is asked. The refusal of the court to give two instructions offered by the defendant with relation to the alleged loan was also made a ground in the motion to set aside the verdict.

The controlling question here is whether Hornbrook's evidence was admissible, for it is on his evidence that the loan was established as being made from Lilly to Blankenship. Defendant's instruction No. 2 was a peremptory one to find for the defendant on the issue as to that loan, and was based on the theory that the evidence to sustain that issue on the part of plaintiff was inadmissible. The other instruction, refused, defendant's instruction No. 8 would have told the jury that, if they believed that Blankenship did receive the loan, and had agreed to credit certain notes that Lilly had given Blankenship as a result of the coal deal, but that he did not do so, and lived for as much as two years thereafter, the presumption would be that he had paid the loan back in some other way, unless they should believe from the preponderance...