Mankin v. Jones
| Decision Date | 20 December 1910 |
| Parties | MANKIN v. JONES. |
| Court | West Virginia Supreme Court |
Submitted September 4, 1909.
Syllabus by the Court.
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.
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.
Money paid on a void contract for the purchase of land may be recovered in assumpsit.
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.
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.
Damages for the breach of a special unexecuted contract are not recoverable under the common counts in assumpsit.
Plaintiff cannot amend his declaration, over the objection of defendant, so as to include a cause of action not contemplated by his original declaration.
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.
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.
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 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 æquo 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.
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 face 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 better offer." Plaintiff further testified that within a week after the date of this letter he saw defendant, and urged him to accept the offer of $40 per acre that he refused to accept it, and replied to plaintiff "that he had decided to keep the property." Counsel for plaintiff in error insist that this evidence, if true, establishes a partnership in the lands between the parties, and that, there having been no settlement of the partnership transaction, a suit could not be maintained by one partner against the other. But we are clearly of the opinion that, whatever may be the true relation between the parties, growing out of this contract, it is certainly not one of partnership. The relation was either that of trustee and cestui que trust, or of principal and agent; and in either case plaintiff could sue in assumpsit. However, we are of the opinion that the relation of trustee and cestui que trust is established, and that Jones held the legal title in trust for himself and plaintiff, for the purpose of sale for the mutual benefit of both, whenever the price of...
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