McGuire et al. v. Weight et al.

• Decision Date: 05 November 1881
• Citation: 18 W.Va. 507
• Parties: McGuire et al. v. Weight et al.
• Court: West Virginia Supreme Court

18 W.Va. 507

McGuire et al.

v.Weight et al.

Supreme Court of Appeals of West Virginia.

Decided November 5, 1881.

*(Patton, J., absent.)

1. Where a bill is filed surcharging and falsifying an administrator's account, and the cause is referred to a commissioner for the purpose of having the account connected, and before the commissioner it is discovered, that the administrator has failed to charge himself with an item properly chargeable agairst him, and the bill does not notice such item, but there is a thorough investigation before the commissioner of the fact, whesher such item is properly chargeable against the administrator, and the administrator takes evidence tending to show, that he is not chargeable with the item, and does not complain of surprise, nor insist upon any specification in writing, nor claim the benefit of an explanation by affidavit or answer, an exception to the report charging him with such item is properly overruled,

2. The word "lease" has a definite legal signification; and a contract in writing selling a "lease" does not carry with it oil, that had theretofore been pumped from an oil-well on the lease so sold.

3. Where there is no ambiguity in a written contract, parol evidence is inad-missible to contradict or vary its terms.

4. Where questions of fact are submitted to a commissioner in chancery, his findings upon such facts should be sustained, unless the court is satisfied from the evidence before the commisioner, that such findings are erroneous; though such report is not entitled to as much weight as the verdict of a jury.

Appeal from and supersedeas to a decree of the circuit court of the county of Wood, rendered on the 11th day of October, 1878, in a cause in said court then pending, wherein Emma McGuire and others were plaintiffs, and F. M. Wright and others were defendants, allowed upon the petition of said Wright.

Hon. James M. Jackson, judge of the fifth judicial circuit, rendered the decree appealed from.

The facts of the case are fully stated in the opinion of the Court.

C. C. Cole and IF. X. Cole, for appellant, relied on the folauthorities: 1 Story Eq. Juris. §§ 524, 525; Adams Eq. (6th Am. ed.) 226 s. p.; 4 Munf. 369; 19 Gratt. 438; 2 Cliff. C. C. 139; 6 W. Va. 153; 7 Johns. Chy. 69; 10 Leigh 434; Corbinv. Mills, 19 Gratt; 10 W. Va. 321; 1 Greenl. Ev. §§ 288, 293, 294, 295, 297.

John A. Hutchinson, for appellee, relied on the following authorities: 1 Story Eq. § 525; 10 Leigh 434; 9 Johns. 450; 3 Munf. 397; 24 Gratt. 389; 1 Greenl. Ev. §281; 4 Zab. 467; 6 Gratt. 644; 6 Rand. 525; 7 Leigh 639; 3 Call 194; 3 H, & M. 416.

Johnson, President, announced the opinion of the Court:

The defendant, F. M. Wright, was duly appointed administrator of the estate of Luke McGuire, deceased. In 1877 he settled his accounts as such administrator before S. C. Shaw, a commissioner of the county court of Wood county, havingbeen appointed as such administrator by the said county court. In the settlement it appeared, that he was indebted to the estate in the sum of $655.66. In August, 1877, Emma McGuire, the widow of said Luke McGuire, in her own right and as the next friend of her infant children, filed a bill in the circuit court of Wood county to surcharge and falsify said account. On the 12th day of October, 1877, the bill was taken for confessed as to the defendant, Wright, and a reference was made to a commissioner with leave to the plaintiff to surcharge and falsify the said account. Before the commissioner upon examination by plaintiffs F. M. Wright showed, that in 1872, Luke McGuire had an interest in an oil-well, which had been pumping oil. He testified, that the well produced four or five barrels of oil per day for two days, and after that it produced two and a half barrels per day; that no account had been kept of the oil produced; and that McGuire had a two thirds interest in the well. When asked, what was his estimate of the oil produced, he said, that he had never made an estimate of it; that if he should make one, it would be "wild"; that it commenced pumping about the 18th of June, 1872, and was pumped every day except Sunday. He said the oil was pumped into tanks; and when the tanks were full, the oil was shipped. The company took its royalty on shipments. He said: "I presume the books of the Volcano Co., will show shipments; but I don't think there were any shipments, while McGuire was in the well." The question was put to him: "In settling your acconnt and charging $764.66 for two thirds of the tubing and other expenses of the well, as charged in your settlement, did you credit his estate with the amount of oil due him from the well?" Objection is noted as follows: "Objected to, because it assumes there was oil due McGuire from the well, when no such fact has been proven, aud the contrary is the fact." He answered: "There was none due; and that is the reason no account was taken of it." The witness produced a memorandum of sale made by McGuire to F. M. Wright, which is as follows:

" 1872, August 5. Bo't this 5th day of August 1872 of L. McGuire his entire interest f interest in lease No. 72, in seHion C, on Volcanock lands in Wood and Mickey countys W. Va., for the sum of $2,500.00, $500.00 to be in cash, and the balance to be a note of J. P. Ridge, one 60 days for $666.66; one for $666.66, 90 days; one for 120 days for $666.66, making $2,000.00 dollars, and the Sed Maguire to pay f of the expenses of boring sed well, and tubing, rods, and rig and running expenses to this date, and if said Maguire dus not work for my to pay said del an balance it is agreed to adjust said clame when third note is due.

" Luke Maguire.

" F. M. Wright."

He admits, that he received the proceeds of shipments of oil; that sometimes he " set down " the proceeds of the shipments of oil, and sometimes he did not.

E. W. Staples, who kept the books of the Volcanic Oil and Coal Company, testified, that the oil produced from lease No. 72, from May, 1872, to August 5, 1872, was four hundred and forty barrels, of which one third was royalty due the said company; and that during that time the oil from that lease was worth $3.30 per barrel. The question was asked him: "Do you know of your own knowledge, how much oil was pumped or produced from the well in controversy, from the time it commenced producing up to the 5th day of August, 1872?" He answered: "My knowledge is from keeping the accounts. At that time it was customary every Saturday to visit each well. 1 did the visiting and ascertained from the party in charge the production of the current week. * * * I have a recollection of visiting the Avell weekly; and the production varied from forty to sixty barrels per week."

There was considerable other testimony as to the production of oil from the well and its value.

The commissioner's charges against defendant, Wright, in his account as to the oil received are as follows:" October 1, 1872, to two thirds of four hundred and forty barrels oil on the lease, August 5, 1872, date of sale, less royalty, two hundred and ninety-three and one half barrels at $3.30, $645.33."

The defendant, Wright, by counsel excepted to this item for various reasons, which will be considered. There were several other exceptions to the report, which are not insisted on here. The court overruled the exceptions to the report, and confirmed it, and decreed against Wright for the amount found due, which was $1,144.51. From this decree Wright appealed.

The counsel for appellant in his brief says:" The principal and perhaps the only controversy here arises upon the appellant's second exception to the report of commisioner Powell relating to the charge of $645.33 for two thirds of four hundred and forty barrels of oil, less royalty, at $3.30 per barrel." It appears, that this item was not in the settlement of the administrator made before the commissioner of the county court, and no mention is made of it in the bill or other pleadings in the cause. The whole controversy here between counsel on both sides is, whether under the pleadings and proof in the cause the said item ought to have been allowed.

The first ground of exception is, that u it is an item by way of surcharge of the account settled by Commissioner Shaw, and the bill does not surcharge the said account in this particular, and there is no reference to it in the pleadings. No evidence can under the state of the pleadings be heard in relation to it. The defendant had...