Miners' and Merchants' Bank v. Gidley

• Citation: 144 S.E.2d 711,150 W.Va. 229
• Decision Date: 09 November 1965
• Docket Number: No. 12387,12387
• Court: Supreme Court of West Virginia
• Parties: MINERS' AND MERCHANTS' BANK, a Corporation, v. Robert N. GIDLEY, Sr.

Page 711

144 S.E.2d 711

150 W.Va. 229

MINERS' AND MERCHANTS' BANK, a Corporation, v. Robert N. GIDLEY, Sr.

No. 12387.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 21, 1965.

Decided Nov. 9, 1965.

Syllabus by the Court

1. Where an instrument is executed by two or more parties, it will be presumed, unless a different relationship is shown by the language of the writing, that all are principals; and in the absence of evidence to the contrary there is no presumption that any of such parties are sureties.

2. Parol evidence is always admissible to show the nonexistence of a contract or to show the conditions upon which a writing is to become effective as a contract.

3. 'A jury verdict based on conflicting testimony, involving the credibility of witnesses and approved by the trial court, will not be set aside by this Court on the ground that it is contrary to the evidence unless in that respect it is clearly wrong.' Point 1, Syllabus, Levine v. Headlee, 148 W.A. 323 .

Wilson & Frame, Clark B. Frame, Morgantown, for appellant.

Charles V. Wehner, Kingwood, for appellee.

CAPLAN, Judge.

This is a civil action instituted in the Circuit Court of Preston County wherein the plaintiff, Miners' and Merchants' Bank, a Corporation, seeks to collect from Robert N. Gidley, Sr., a certain sum of money representing the purchase price of an automobile. After all the evidence had been submitted the jury returned a verdict for the plaintiff, and the defendant prosecutes this appeal.

On June 28, 1961 the defendant's son, Robert N. Gidley, Jr., then a member of the United States Air Force, was traveling in his automobile from Great Falls Air Base in Montana to his home near Albright in Preston County, West Virginia. While in the vicinity of Roundup, Montana his car broke down. Desiring to continue his trip, he contacted a salesman representing Hoiland Motors, Inc., of Roundup, Montana, and discussed the possibility of tranding his vehicle for another car. As a result of this discussion Robert N. Gidley, Jr., who was then nineteen years of age, purchased a 1957 Chevrolet. The total purchase price of the car was $1,090.00. After the trade-in value of his automobile was credited on this amount and certain finance charges added, the total amount owing on the purchased vehicle was $905.07, This was to be paid in twenty-four consecutive monthly installments of $40.25 each. Failure to make these payments gave rise to this action.

The purchase was made on a conditional sales contract which was executed on June 28, 1961 by Don E. Belcher, a salesman for Hoiland Motors, Inc., and by Robert, N. Gidley, Jr. In his deposition which was read to the jury in the proceeding in the trial court, Don Belcher testified that he explained to Robert N. Gidley, Jr., that his father would have to sign this conditional sales contract as a buyer in order to make the contract valid and that he sold the car with that understanding. He stated further that Gidley, Jr., also understood that his father would have to sign the contract as a purchaser. This he said was necessary because Gidley, Jr., was a minor.

The evidence further reveals that on the day of the purchase, June 28, 1961, Gidley, Jr., after executing the contract, took possession of the car, placed his belongings therein and, with the permission and full knowledge of the seller, continued on his trip to his home in West Virginia. Belcher mailed the contract to Robert N. Gidley, Sr., on that day and requested that he place his signature thereon. He says that he also sent a letter with a full explanation of the contract. Having failed to hear from Gidley, Sr., Belcher, on July 6, 1961, called him at Albright, West Virginia and asked him if the had signed and mailed the contract. He stated that Gidley, Sr., told him he had signed it and that it would be mailed in the next day or so. No further word was received and, on July 11, 1961, Belcher again contacted Gidley, Sr., by telephone. He testified that Gidley, Sr. told him the contract was in the mail. His further testimony was that he received the contract, signed by Robert N. Gidley, Jr. and Robert N. Gidley, Sr., on July 12, on which date it was assigned by Hoiland Motors, Inc., to the plaintiff, Miners' and Merchants' Bank.

On July 19, 1961, while Robert N. Gidley, Jr., was driving this 1957 Chevrolet, an accident occurred and the car was totally wrecked. According to the testimony of Robert N. Gidley, Sr., the contract was executed and mailed by him to Hoiland Motors, Inc. on July 20, after the accident. He stated that he did this because he believed that the seller would need his signature on the contract in order to collect insurance. Thus we have a direct conflict relative to the exact date on which the contract was signed and delivered. Supporting the allegation that the contract was received by Hoiland Motors, Inc., on July 12, 1961 are the affidavit and deposition of Don Belcher, the salesman, and the deposition of William Bianchi, an official of the plaintiff bank. Furthermore, there appears as an exhibit in the original record of this proceeding a copy of the contract executed by the seller and by Robert N. Gidley, Jr., and Robert N. Gidley, Sr., on the reverse side of which appears the assignment thereof to the plaintiff. The date of such assignment as reflected on that exhibit is July 12, 1961. Supporting the contention that the contract was mailed to the seller on July 20, 1961 is the testimony of the defendant and that of his wife and son.

A further conflict in the testimony was the denial by the Gidleys, Robert N. Gidley, Sr. and his wife, that Belcher had ever contacted Mr. Gidley by telephone. Mrs. Gidley's testimony was that she had talked with Belcher and had told him that Hoiland Motors, Inc., had made the sale to their son and that they saw no reason to sign the contract and that they were not going to do so.

In relation to the insurance on the automobile, no charge was made on the sales contract therefor, and Belcher testified that he was told by Gidley, Jr., that he had insurance on his old car which he believed would carry over to a newly purchased automobile. Gidley, Jr., on the other hand, testified that he told Belcher he had only liability insurance. With these conflicts in the testimony the case went to the jury, which returned a verdict in favor of the plaintiff in the sum of $905.07.

The defendant takes the position that Robert N. Gidley, Sr., signed this conditional sales contract as a surety only and that since he did not receive any consideration therefor he could not be held liable. The plaintiff of course takes the position that Gidley, Sr., signed this contract as a co-purchaser and is therefore liable. During the trial Gidley, Jr., was permitted to renounce the contract and was dismissed from the case.

Considering first the contention of the defendant that he signed this contract as a surety for his son, we are of the opinion and so hold that the relationship of principal and surety did not exist in this case. The relation of suretyship arises from an agreement between the parties whereby one person becomes liable for the debt or duty of another, in which such person has no direct personal interest and from which he does not receive a benefit. 72 C.J.S. Principal and Surety § 9. This relationship arises only by express contract. 50 Am.Jur., Suretyship, Section 10.

It is well established that the relation of principal and surety will not be presumed from the mere appearance of two names on an instrument. This is cogently stated in 72 C.J.S. Principal and Surety § 12, as follows: 'Where the names of two or more parties to an obligation appear, it will be presumed, unless a different relationship is shown by the language of the writing, that all are principals; and in the absence of evidence to the contrary there generally is no presumption that any of such parties are sureties; * * *.' This presumption may be rebutted by proper evidence.

In the case at bar two signatures appear on the contract. The language of the writing does not in any respect show that such persons are anything other than principals. There is no showing of a relationship of principal and surety. While, as stated above, the presumption that both parties are principals may be rebutted, no such rebuttal appears in this record. Nowhere does the defendant, either in the writing or by his evidence, even undertake to show that he signed the subject contract as a surety. In these circumstances and under the foregoing principles of law, this contention of the defendant must fail.

It having been decided that Gidley, Sr. did not sign the subject contract as a surety, it must now be determined in what capacity he did affix his signature to this instrument. This determination must be made from an examination of the contract and of the evidence adduced at the trial.

The contract upon which the plaintiff seeks recovery is signed by Robert N. Gidley, Jr., and Robert N. Gidley, Sr. Both signatures were on the contract when it was assigned to the plaintiff bank. Nothing has been paid on this obligation, nor has the automobile been returned. The plaintiff, therefore, taking the position that the defendant is a principal on the assigned instrument and consequently a co-purchaser, alleges that the sum of $905.07 is owing and due and seeks recovery thereof. In reply the defendant says that he did not sign the contract as a co-purchaser but did so only after the car had been demolished and only as an accommodation so that...