Mcguire v. Brown
| Decision Date | 21 November 1912 |
| Citation | 76 S.E. 295,114 Va. 235 |
| Parties | McGUIRE et al. v. BROWN. |
| Court | Virginia Supreme Court |
Assignments (§ 19*)—Assignable Contract.
A contract providing that a relative of one signer of the same should receive one-half the proceeds of the sale of the interest of the signers in certain land, being a conditional and personal contract, and made in contemplation of personal assistance to be given in making a sale, was not assignable before a sale was made.
[Ed. Note.—For other cases, see Assignments, Cent. Dig. §§ 28-31; Dec. Dig. § 19.*]
Appeal from Circuit Court, Tazewell County.
Action by James R. Brown, as guardian, against the heirs and distributees of James M. McGuire, deceased, and others. From the decree, the heirs and distributees of James M. McGuire appeal. Affirmed.
Greever & Gillespie, of Tazewell, for appellants.
Henry & Graham, of Tazewell, and E. R. Boyd, of Grundy, for appellee.
This litigation arises out of the following agreement: "We agree and bind ourselves to pay W.
H. Brown one-half of the money we get for our interest in two tracts of land lying on the Fork Ridge of Dismal, in the county of Buchanan. Said tract contains 1, 270 or
1, 320 acres, more or less, and we are not sure which number of acres is correct, which interest is one-thirteenth part of said land. Said land was owned by Joseph C. Brown at the time of his death. We further agree to sell said land at a price agreed upon between us and said W. H. Brown, and if we fail to agree upon a price, then we are to select two other men, one to be selected by W. H. B. and the other by us, who shall fix a price on it.
Upon said agreement appears the following assignment:
It appears that Nannie E. Brown, the wife of Jas. R. Brown, at the time that the above agreement was entered into on January 21, 1887, owned in absolute right and as her separate estate an undivided one-thirteenth interest in the lands referred to in the agreement, which she acquired as an heir at law of Joseph C. Brown, which lands were subsequently partitioned, and in which partition there was allotted to Nannie E. Brown 121 acres thereof. Mrs. Brown lived more than 17 years after the above agreement with W. H. Brown was entered into, and Jas. M. McGuire lived some years after the assignment of the agreement to him, but no sale of the land referred to in the agreement was made, nor was any attempt made to effect a sale thereof during the life of either Mrs. Brown or Jas. M. McGuire, so far as the record discloses.
In 1910 Jas. R. Brown, the husband of Nannie E. Brown, who still survives her, entered into negotiations on behalf of himself and his children with the C. L. Ritter Lumber Company looking to a sale of certain standing timber upon the 121 acres of land in question, and a sale of the timber was agreed on at the price of $1,200; whereupon the heirs and distributees of Jas. M. McGuire, deceased, came forward asserting their right to one-half of the proceeds of said sale of timber by virtue of the agreement between Jas. R. Brown and Nannie E. Brown, and W. H. Brown, and the assignment of the agreement appearing thereon to Jas. M. McGuire, and, in order to effectuate the sale of said timber to the C. L. Ritter Lumber Company, an agreement in writing was entered Into on July 15, 1910, between the heirs and distributees of Jas. M. McGuire, deceased, parties of the first part, the adult heirs and distributees of McGuire, Nannie E. Brown, and Jas. R. Brown in his own right and as guardian of his infant children, parties of the second part, and the C. L. Ritter Lumber Company, party of the third part, to the effect that the said sale of timber to the lumber company should be consummated by the purchase money being deposited by the lumber company with the clerk of the circuit court of Tazewell county, to be held in trust until the dispute as to the ownership thereof was settled or adjudicated between the parties of the first part and the parties of the second part to said agreement. Thereupon this suit was instituted by Jas. R. Brown as guardian of the infant children of himself and Nannie E. Brown, deceased, against the heirs and distributees of Jas. M McGuire, deceased, the adult children of Nannie E. Brown, deceased, the C. L. Ritter Lumber Company and S. M. Graham, clerk of Tazewell circuit court, in which suit the court was called upon to determine and adjudicate what rights, if any, the heirs, etc., of Jas. M. McGuire, deceased, had in said 121 acres of land or the fund held by Graham, clerk, from the sale of timber from the land by virtue of the agreement of January 21, 1887, between Jas. R Brown and Nannie E. Brown, and W. H. Brown, and the assignment thereof by the latter to Jas. M. McGuire on June 20, 1887.
Upon the bill of complaint and the exhibited agreement of January 21, 1887, called "Exhibit Brown, " and the agreement of July 15, 1910, called "Exhibit Contract, " the answer of the guardian ad litem and of the heirs of Jas. M. McGuire to the bill, and the depositions of witnesses, the circuit court adjudicated and decreed that the sale of timber to the C. L. Ritter Lumber Company be affirmed, but that "Jas. M. McGuire, the assignee of the contract 'Exhibit Brown, ' acquired no interest therein, and acquired no interest in the 121 acres of land, nor in the timber thereon which was sold to the C. L. Ritter Lumber Company, Incorporated, * * * nor in the fund of $1,200, the purchase price thereof, * * * " and that said fund in the hands of Graham, clerk, be distributed to Jas. R Brown in his own right and as guardian of the infant children of Nannie E Brown, deceased, and her adult heirs, according to their respective rights therein. Prom that decree the heirs and distributees of Jas. M. McGuire take this appeal.
The appellants in brief contend that the agreement, "Exhibit Brown, " "is a definite, unqualified, unconditional promise, under seal, to pay (W. H. Brown) a certain definite paft, to wit, one-half of a certain definite fund, to wit, the purchase money to be received for said land;" that "Exhibit Brown" was a valid and binding contract between the original parties thereto, and that the assignment of this contract to James M. McGuire was also good and valid, and therefore appellants, heirs and distributees of James M. McGuire, are entitled to one-half of the proceeds of the sale of timber from the land in question to the C. L Ritter Lumber Company.
It is conceded in the argument that, if the agreement "Exhibit Brown" amounts only to a power and authority of sale of the land, it is a contract personal, and not assignable. The crucial question in the case, therefore, is whether or not the agreement "Exhibit Brown" amounts only to a power and authority to...
To continue reading
Request your trial
-
Fransmart Llc v. Freshii Dev. Llc
...on a relationship of trust and confidence or that requires a party to exercise skill, judgment, or expertise. See McGuire v. Brown, 114 Va. 235, 76 S.E. 295, 297 (1912); Epperson v. Epperson, 108 Va. 471, 62 S.E. 344, 346 (1908). Thus, Freshii contends that the Agreement was not assignable ......
-
MNC Credit Corp. v. Sickels
...services were not assignable because of the fiduciary duties inherent in the attorney-client relationship. See McGuire v. Brown, 114 Va. 235, 242, 76 S.E. 295, 297 (1912); Epperson v. Epperson, 108 Va. 471, 476, 62 S.E. 344, 346 In 1977, the General Assembly enacted Code § 8.01-26 which sta......
-
Network Solutions, Inc. v. Umbro Intern.
...or involve[s] a relation of personal confidence," one party cannot assign it without consent of other party); McGuire v. Brown, Guardian, 114 Va. 235, 242, 76 S.E. 295, 297 (1912) (holding contract for personal services is not If we allow the garnishment of NSI's services in this case becau......
-
Moore v. Railway Company
...construction of contracts that the object of the court is to discover and give effect to the intention of the parties. In McGuire Brown, 114 Va. 235, 76 S.E. 295, 297, the court said: "Regard should be had to the intention of the parties and such intention should be given effect. To arrive ......