Mankin v. Jones.
| Decision Date | 21 January 1908 |
| Court | West Virginia Supreme Court |
| Parties | Mankin v. Jones. |
Where the declaration shows jurisdiction, no exception for want of jurisdiction can be taken except by plea in abatement, (p. 375.)
A declaration in assumpsit states that the contract was made in Raleigh county, whereas the proof shows that it was made in Fayette county. This 'variance will not dismiss the case, the place not being material, (p. 376.)
One is not bound by a mere promise to pay the debt of another; unless the promise be in writing signed by the promising party, (p. 376.)
If the person whose debt a third person makes an oral promise to pay, remains still liable, such promise is not binding on such third person, (p. 376.)
Collateral oral promise by one to pay another's debt is not binding where no benefit accrues to the person making such promise, (p. 378.)
Stenographer's notes useless matter, (p. 380.)
Error to Circuit Court, Raleigh County. Action by Crockett Mankin against George W. Jones, Judgment for plaintiff, and defendant brings error.
Reversed.
McGinnis & Hatcher, for plaintiff in error. Mathent & Brown, J. L. Bumgardner, and Ashton File, for defendant in error.
Crockett Mankin sold to A. P. Gibson some land for which Gribson was to pay Mankin cash on delivery of deed. Mankin met Gibson, and they ascertained the amount of money to be paid by Gibson to Mankin for the land to be about $8,000. Gribson did not have enough money to discharge the purchase money to Mankin by $4,000. Gibson sent for George W. Jones expecting that Jones would furnish the $4,000. Jones came and met Mankin and Gibson, and the matter was stated to him, and Jones promised verbally to pay Mankin for Gibson that amount. Jones did not have his check book present, but he assumed to pay Mankin, and then Mankin said that it made no difference about the money, and if Jones would convey to him a tract of land called the Trump Land at $4,225 that would clo instead of money. To this Jones assented, and it was agreed that Jones would pay for Gibson by the conveyance to Mankin of the Trump Land $4,225. It seems that Mankin and Jones had before that been negotiating for this Trump Land. So, Jones agreed to pay Mankin, in this Trump Land, $4,225, and Mankin credited Gibson with that sum on the $8,000 which Gibson was to pay Mankin for the land sold by Mankin to Gibson, and Gibson paid Mankin the said $8,000, less said $4,225, and Mankin. delivered to Gjibson the deed for the land sold by Mankin to Gibson. Jones gave Mankin directions to prepare a deed from Jones and wife to Mankin for the Trump Land, with the understanding that he would execute the deed. Mankin later sent Jones such deed for execution; but Jones delivered it to a third party in escrow to be delivered to Mankin only on condition that Mankin guaranteed payment to Jones of the $4,225 for the land, in case Gibson should not pay Jones. Mankin refused to make such guaranty and the deed was never delivered to him. Some dealing had been going on between Gibson and Jones by which it was expected that through Gibson certain other land would be acquired by Jones, and in such event Gibson would become indebted to Jones in $4,800. It does not appear that this expectation was realized. It is clear that no actual debt was to exist in favor of Gibson against Jones, unless Jones should get the land, which it was expected he might get through Gibson's agency. Mankin brought an action of assumpsit against Jones in the circuit court of Raleigh county and obtained verdict and judgment against him, and Jones has appealed the case to this Court.
It developed in evidence that Jones resided in Fayette county and the contract was made in Fayette county. Jones moved to dismiss the action for want of jurisdiction in Raleigh county. It does not appear to what county the summons went, so as to raise the question whether it was void because issued in Raleigh county against a single defendant and sent to and served in Fayette county, under principles stated this term in case of Wetter-Oppenhehner cfc Co. v. Elf ant, based on Warren v. Sanders, 27 Grat. p. 265. The question is, whether when both the defendants resides in one county and the contract was made in that county, a law action in another county is without jurisdiction. Clearly it would be; but the declaration does not disclose where the defendant resided. Though we may say that it states the cause of action as arising in Raleigh county, yet it does not state where Jones resides and thus does not defeat jurisdiction in Raleigh on its face. It contains only the common counts, and shows on its face proper matter for jurisdiction, and therefore chapter 125, section 16 of the Code, applies. It says," Where the declaration or bill shows on its face proper matter for the jurisdiction of the court, no exception for the want of such jurisdiction shall be allowed, unless it be taken by plea in abatement." Snyder v. Philadelphia Co., 54 W. Va. 149. No plea in abatement was filed. The jurisdiction was thus questioned for the first time after the trial before the jury had begun.
Again, the point is made that the court should have dismissed the case on the motion of the defendant for variance between declaration and evidence. The declaration avers that the promise was made in Raleigh county, whilst the evidence shows that it was made in Fayette county. Clearly there is nothing in this point. An action on such a promise is transitory. No matter where the promise is made, you can sue in the county where the defendant resides. The Code, chapter 125, section 32, says that "It shall not be necessary in any declaration or other pleading to set forth the place in which any contract was made, or act done, unless when, from the nature of the case, the place is material or traversable." In this case the place was not traversable. That statute thus renders the statement of the place of the contract immaterial. Mr. Hogg in Pleading and Forms properly states the rule thus:" The rule respecting variances may be stated to be: that if the entire averment can be expunged without affecting the right to recover, it need not be proved; but if it cannot be thus stricken from the declaration without getting rid of a part essential to the cause of action, then, though the averment be more particular than it need have been, the whole must be proved, or the plaintiff cannot recover." Section 137, Hogg's Plead. & Forms. See Payne v. Bfitton, 6 Randolph 101.
But the true question in this case is, whether Jones is liable at all to Mankin. Jones relies on the fact that his promise to pay is not in writing, and is therefore not enforcible because of that provision of chapter 98 of the Code, providing that no action shall be brought," To charge any person upon a promise to answer for the debt, default, or misdoings of another * * * unless the promise, contract, agreement, representation, assurance or ratification, or some memorandum or note thereof be in writing and signed by the party to be charged thereby or his agent." It is a rule of law that if the third person for whom money is promised remains still responsible to the person who supplies the articles or from whom the consideration proceeds, the promise to pay for the third person is collateral, as it is called, not an original promise, and therefore is not actionable because of said statute. This is laid down by Judge Cox in Johnson v. Bank, 60 W. Va. 326. When the consideration of the promise is for money to be furnished and received by a third person, if the transaction is such that the third person remains responsible to the person who fur- nistied him with such money or property, or from whom the consideration proceeds, such promise is collateral, and will not bind unless in writing, Badcliff v. Poundstone, 23 W. Va. 724. Apply this law in this case. Did Gibson still remain, in any event, liable to Mankin for the land which Mankin sold to Gibson? If he did, the oral promise of Jones is not binding. Now, Gibson, as a witness for the plaintiff, states that he agreed to pay Mankin, if he should not get the Trump Land from Jones. Besides such is the whole cast of the case from the circumstances and evidence. Before Jones came on the scene or met the parties, or had anything to do with the matter Mankin and Gibson had made their contract and ascertained the amount due Mankin. So...
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