Mankin v. Jones

CourtSupreme Court of West Virginia
Writing for the CourtWILLIAMS
Citation68 W.Va. 422,69 S.E. 981
Decision Date20 December 1910
PartiesMANKIN v. JONES.

69 S.E. 981
68 W.Va.
422

MANKIN
v.
JONES.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1910.


(Syllabus by the Court.)

1. Frauds, Statute of (§ 33*)—Promise to Pay Debt of Another.

An oral promise to pay the debt of another, when supported by a new consideration beneficial to the promisor, is not within the statute of frauds.

[Ed. Note.—For other cases, see Frauds. Statute of, Cent. Dig. §§ 50-56; Dec. Dig. § 33.*]

2. Frauds, Statute of (§ 33*)—Promise to Pay Debt of Another.

If J. owes G., and G. owes M., and J. orally promises to pay M. the debt which G. owes him. and M. thereupon releases G., such promise is not within the statute of frauds.

[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-56; Dec. Dig. § 33.*]

3. Vendor and Purhaser (§ 338*)—Recovery of Money Paidc—Assumpsit.

Money paid on a void contract for the purchase of land may be recovered in assumpsit.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 991-993; Dec. Dig. § 338.*]

4. Frauds, Statute of (§ 74*) — Trusts (§ 92 1/2*)—Partnership (§ 20*)—Contract for Sale of Land.

M. and J. orally agree to buy certain land for the purpose of speculation, the land to be sold and the profits divided whenever the price of $35 an acre, or more, can be obtained, M. to spend his time and use his judgment in making the purchases, and J. to furnish the purchase money and hold the legal title. Held:

(1) Such agreement is not a contract for the sale of land, and consequently is not within the statute of frauds.

(2) Neither does it constitute M. and J. partners in the land, but it creates a constructive trust in favor of M. for the purpose of a sale of the land and a division of the profits.

[Ed. Note.—For other cases, see Frauds, Statute of. Cent. Dig. 122-131; Dec. Dig. § 74;* Trusts, Dec. Dig. § 92 1/2;* Partnership, Dec. Dig. § 20.*]

5. Specific Performance (§ 4*)—Breach of Contract—Remedies of Parties.

If M. procures a bona fide purchaser for the land at $40 an acre and advises J. of it, and he thereupon refuses to sell, and informs M. that he intends to keep the land, M. may elect either to sue In equity for specific execution of the contract, or to bring an action at law for its breach.

[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. § 4; Dee. Dig. § 4.*]

6. Assumpsit, Action of (§ 5*)—Breach of Contract—Recovery of Damages.

Damages for the breach of a special unexecuted contract are not recoverable under the common counts in assumpsit.

[Ed. Note.—For other cases, see Assumpsit. Action of, Cent. Dig. §§ 14-26; Dec. Dig. § 5.*]

7. Pleading (§ 248*)--Declaration—Amendment—New Cause.

Plaintiff cannot amend his declaration, over the objection of defendant, so as to include a cause of action not contemplated by his original declaration.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 686-709; Dec. Dig. § 248.*]

8. Pleading (§ 248*)—Declaration—Amendment—New Cause.

Amending a declaration in assumpsit, embracing the common counts only, by adding a special count applicable to a particular item in the bill of particulars, which is also provable under some one of the common counts, is not a departure from the original cause of action, if the amount of damages claimed in both the original and the amended declarations is the same.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 609; Dec. Dig. § 248.*]

Poffenbarger, J., dissenting in part.

Error from Circuit Court, Raleigh County.

Action by Crockett Mankin against G. W. Jones. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

McGinnis & Hatcher and W. R. Thompson, for plaintiff in error.

M. F. Matheny, File & File, and Sanders & Crockett, for defendant in error.

WILLIAMS, J. Plaintiff recovered a judgment in assumpsit against defendant in the circuit court of Raleigh county on the 23d of February, 1909, for $8,944.35, and defendant sued out this writ of error. The case was once before in this court and is reported in 63 W. Va. 373, 60 S. E. 248, 15 L. R. A. (N. S.) 214. It was then reversed and remanded for a new trial, because it did not appear that there was any consideration to support Jones' promise to pay Gibson's debt to plaintiff, and the promise, not being in writing and signed by Jones, was held to be within the statute of frauds. On the first trial the declaration contained only the common counts; but before the new trial was had plaintiff amended his declaration, and added a special count which sets forth in detail the circumstances attending the making of the promise by Jones to plaintiff, and alleges that the consideration for the promise was the payment of a debt which Jones himself at that time owed to one Gibson. The case was again tried by a jury upon the general issue. The testimony is very conflicting, but concerning the weight) of conflicting testimony the jury are the sole judges, and we must therefore accept their finding upon the disputed facts. The special count relates to an item of $4,225, and interest, in plaintiff's bill of particulars, and originated in a sale of land by plaintiff to Gibson, the consideration for which was about $8,000, and was to be paid in cash on the delivery of the deeds. When plaintiff and Gibson met for the purpose of completing the transaction, Gibson found that he did not have cash enough to pay for the

[69 S.E. 982]

land in full, and he called in Mr. Jones, who, according to plaintiff's evidence, said he would pay the balance, $4,225, due to plaintiff. Thereupon plaintiff delivered the deeds of conveyance for the land to Gibson, and, as he says, relied upon Jones' oral promise, and released Gibson. Gibson testified that Jones at that time owed him $8,000. It is well established that, where there is a new consideration to support the promise of one person to pay the debt of another, such promise need not be in writing in order to be binding. Such a promise is not within the statute of frauds. By paying Gibson's debt to plaintiff, Jones was paying, pro tanto, his own obligation to Gibson. This was a new consideration certainly sufficient to support the promise. This identical point arose in Hooper v. Hooper, 32 W. Va. 526, 9 S. E. 937, and it was there held that the promisor was thus only paying his own debt, which is true. See, also, Howell v. Harvey, 65 W. Va. 310, 64 S. E. 249, 22 L. R. A. (N. S.) 1077, and cases cited in the opinion.

It is insisted that Jones' promise was to pay the debt in lands, and not in money, and that therefore assumpsit does not lie to recover the money. But suppose he did promise to pay in land at an agreed price, and afterwards refused to do so, plaintiff could sue for the money. Burr v. Brown, 5 W. Va. 241; Butcher v. Carlile, 12 Grat. (Va.) 520; Turpin v. Sledd's Ex'r, 23 Grat. (Va.) 238; Stewart v. Donelly, 4 Yerg. (Tenn.) 177; Gilbert v. Danforth, 6 N. Y. 585; Minnick v. Williams, 77 Va. 758.

There is another theory, consistent with reason, authority, and the proof in the case, on which assumpsit can be maintained for this item of $4,225, which is that Jones' promise to convey certain lands to plaintiff was an oral contract for the sale of land, fully paid for, but not enforceable in equity, because possession had not been delivered. On refusing to execute such a contract, plaintiff has a right of action for money had and received for his use. Plaintiff had fully paid defendant for the land by delivering his deeds to Gibson and releasing him. There was nothing else for plaintiff to do to entitle him to the conveyance from Jones.

"To sustain the count for money received by the defendant for the use of the plaintiff, it is only necessary to show that the defendant has obtained possession of money, or received something as money, which ex aequo et bono he ought to refund." 2 Enc. Pl. & Pr. 1016, and the numerous cases cited in the notes; Thompson v. Thompson, 5 W. Va. 190; Jackson v. Hough, 38 W. Va. 236, 18 S. E. 575; Martin v. Martin, 5 Bush (Ky.) 47; Mannen v. Bradberry, 81 Ky. 153.

"The action of assumpsit is a liberal and equitable one. It is applicable to almost every case where money has been received which in equity and good conscience ought to be refunded." Thompson v. Thompson, 5 W. Va. 190. On the failure of the vendor to convey, the vendee can sue in assumpsit and recover the money which he has paid, even though the contract be not enforceable in equity. Bier v. Smith, 25 W. Va. 830; Lipscomb v. Lipscomb, 66 W. Va. 55, 66 S. E. 8.

The other controverted item in plaintiff's bill of particulars filed with his amended declaration is an item of $4,102.50, and is described as being $7.50 per acre on 547 acres of land purchased by Mankin for Jones. This item was not included in plaintiff's bill of particulars on the first trial; neither is it described by a special count in the amended declaration. The proof of this item, as well as the others, depends upon the conflicting testimony of witnesses. Plaintiff's evidence proves that he and defendant orally agreed that plaintiff should purchase this 547 acres of land at the price of $25 an acre, for the purpose of reselling for a profit; that defendant was to pay for it and take title to himself; that they were to hold the lands until the price of $35 an acre could be obtained; and that they were then to sell, and divide the profits equally. Plaintiff further proves that the lands were bought pursuant to that agreement, and the title conveyed to defendant; that not long thereafter plaintiff found a purchaser who was willing to pay $40 per acre; that he communicated this fact to defendant; that in reply defendant wrote plaintiff as follows: "Your son just handed me your letter—I had just written one to mail you which I herewith inclose—Will be glad to see you if over this way—Your offer of 40 00 is certainly very tempting—I am almost too much surprised at such an offer to advise you on so short notice—This is certainly a fine offer and you might keep many years before getting a...

To continue reading

Request your trial
16 practice notes
  • Valentine v. Sugar Rock, Inc., No. 14–0246.
    • United States
    • Supreme Court of West Virginia
    • 14 Noviembre 2014
    ...but may be by oral agreement, or may be implied from their conduct and dealings with one another.”).18 See, e.g., Mankin v. Jones, 68 W.Va. 422, 69 S.E. 981 (1910) (buying land for purpose of speculation does not create a partnership); Syllabus Point 1, Tyler v. Teter, 75 W.Va. 217, 83 S.E.......
  • Wright v. Standard Ultramarine & Color Co., No. CC820
    • United States
    • Supreme Court of West Virginia
    • 6 Diciembre 1955
    ...104 S.E. 62; Standard Fashion Company v. Lopinsky, 84 W.Va. 523, 101 S.E. 152; Thomas v. Mott, 78 W.Va. 113, 88 S.E. 651; Mankin v. Jones, 68 W.Va. 422, 69 S.E. 981; Bannister v. Victoria Coal and Coke Company, 63 W.Va. 502, 61 S.E. 338; Sandusky v. West Fork Oil and Natural Gas Company, 63......
  • Bennett v. Bennett, (No. 4423.)
    • United States
    • Supreme Court of West Virginia
    • 28 Noviembre 1922
    ...the sales and receipt of the proceeds, and that plaintiff had an adequate remedy at law upon a mere legal demand—citing Mankin v. Jones, 68 W. Va. 422, 69 S. E. 981, Annon v. Brown, 65 W. Va. 34, 63 S. E. 691, Hoke v. Davis, 33 W. Va. 485, 10 S. E. 820, and Newman v. Ruby, 54 W. Va. 381, 46......
  • Findley v. Coal & Coke Ry. Co, (No. 2702.)
    • United States
    • Supreme Court of West Virginia
    • 12 Octubre 1915
    ...as to introduce a new cause of action, over objection. Uniform adherence to this rule is attested by numerous decisions. Mankin v. Jones, 68 W. Va. 422, 69 S. E. 981; Hanson v. Blake's Adm'r, 63 W. Va. 560, 60 S. E. 589; Clarke v. O. R. R. Co., 39 W. Va. 732, 20 S. E. 696; Kuhn v. Brown-fie......
  • Request a trial to view additional results
16 cases
  • Valentine v. Sugar Rock, Inc., No. 14–0246.
    • United States
    • Supreme Court of West Virginia
    • 14 Noviembre 2014
    ...but may be by oral agreement, or may be implied from their conduct and dealings with one another.”).18 See, e.g., Mankin v. Jones, 68 W.Va. 422, 69 S.E. 981 (1910) (buying land for purpose of speculation does not create a partnership); Syllabus Point 1, Tyler v. Teter, 75 W.Va. 217, 83 S.E.......
  • Wright v. Standard Ultramarine & Color Co., No. CC820
    • United States
    • Supreme Court of West Virginia
    • 6 Diciembre 1955
    ...104 S.E. 62; Standard Fashion Company v. Lopinsky, 84 W.Va. 523, 101 S.E. 152; Thomas v. Mott, 78 W.Va. 113, 88 S.E. 651; Mankin v. Jones, 68 W.Va. 422, 69 S.E. 981; Bannister v. Victoria Coal and Coke Company, 63 W.Va. 502, 61 S.E. 338; Sandusky v. West Fork Oil and Natural Gas Company, 63......
  • Bennett v. Bennett, (No. 4423.)
    • United States
    • Supreme Court of West Virginia
    • 28 Noviembre 1922
    ...the sales and receipt of the proceeds, and that plaintiff had an adequate remedy at law upon a mere legal demand—citing Mankin v. Jones, 68 W. Va. 422, 69 S. E. 981, Annon v. Brown, 65 W. Va. 34, 63 S. E. 691, Hoke v. Davis, 33 W. Va. 485, 10 S. E. 820, and Newman v. Ruby, 54 W. Va. 381, 46......
  • Findley v. Coal & Coke Ry. Co, (No. 2702.)
    • United States
    • Supreme Court of West Virginia
    • 12 Octubre 1915
    ...as to introduce a new cause of action, over objection. Uniform adherence to this rule is attested by numerous decisions. Mankin v. Jones, 68 W. Va. 422, 69 S. E. 981; Hanson v. Blake's Adm'r, 63 W. Va. 560, 60 S. E. 589; Clarke v. O. R. R. Co., 39 W. Va. 732, 20 S. E. 696; Kuhn v. Brown-fie......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT