National Valley Bank of Staunton v. Houston

• Decision Date: 23 November 1909
• Parties: NATIONAL VALLEY BANK OF STAUNTON v. HOUSTON et al.
• Court: West Virginia Supreme Court

66 S.E. 465

66 W.Va. 336

NATIONAL VALLEY BANK OF STAUNTON v. HOUSTON et al.

Supreme Court of Appeals of West Virginia.

November 23, 1909

Submitted March 10, 1909.

Syllabus by the Court.

A declaration in assumpsit on a promise in writing to pay money, which distinctly alleges fulfillment of the only condition on which such payment was made to depend, is good on demurrer.

Though an exception of defendant to a ruling on a special plea tendered be not contained in any order entered in the court below, yet if it be shown in the certificate of evidence, or in any other part of the record, the defendant may avail himself here of any error in rejecting such plea.

A special plea, alleging want of complete delivery of the bond sued on, and that the condition of the delivery thereof had never been complied with, and concluding with an "et sic non est factum," is sustantially a plea of non est factum, and if not verified, as required by section 3859, Code 1906, is properly rejected.

A plea which is substantially a plea of failure of consideration, or fraud in the procurement of the contract sued on, by section 3891, Code 1906, requires verification, without which it is properly rejected.

A general replication to such a special plea is all that is required to put in issue all the material matters of defense therein pleaded, and a special reply is not required.

In a suit involving the question of financial responsibility of some of the defendants at the time they signed the contract sued on, the property books of the county are proper evidence, not of perfect title to the property, but as tending to show claim of right and title by such defendants to the property charged to them for taxation, and as pertinent to the issue.

Error in sustaining objections to questions propounded a witness will not be available here, unless the record affirmatively shows that the complaining party has been prejudiced thereby.

A contract under seal to pay to another, as committee, a certain sum of money, the proceeds whereof were to be expended so far as might be necessary in making a location survey for a railroad, and in paying other necessary expenses attending the same, is not void for want of mutuality.

Though such contract be treated as a mere subscription to the object specified, if the subscription be acceded to, on the terms on which it is made, and labor or money be expended on the faith thereof, the party making the subscription is bound thereby.

Indorsements made by the clerk on the back of a bill of exceptions or certificate of evidence will not be sufficient to impeach the verity of the certificate of the judge to such bill of exceptions, or the vacation order of the judge certifying such bill of exception to the clerk.

Error to Circuit Court, Monroe County.

Action by the National Valley Bank of Staunton against A. C. Houston and others. Judgment for plaintiff, and certain defendants bring error. Affirmed.

John W Arbuckle, for plaintiffs in error.

Rowan & Meadows, for defendant in error.

MILLER P.

The declaration in assumpsit contains the common counts, and two special counts. The instrument counted upon in the special counts is signed and sealed by A. C. Houston and 53 other persons and firms, defendants, as follows: "Twelve months after-date, with interest from date, we promise and bind ourselves to pay J. D. Logan, president of Com. of Monroe Central Railroad, on survey of rights of way, five thousand dollars, value received. It is agreed, first, that this obligation is of no force until fifty or more responsible persons have signed the same. 2nd. That the proceeds of this note are to be expended in making a location survey as far as may be necessary, and paying other necessary expenses attending the same, for the Monroe Central Railroad. 3rd. That the signers of this obligation are to be reimbursed so far as they may pay any amount due thereon from funds which may be raised by the county of Monroe or any district therein, for the purposes aforesaid by taxation or otherwise and that the name of the obligee and blank dates shall be filled as soon as known. Witness the following signatures and seals, this 8th day of October, 1904." The declaration was twice amended, and, as amended, the first of the special counts charges in general terms that defendants made their said writing obligatory, sealed with their seals, and dated as aforesaid, whereby they bound themselves and promised to pay J. D. Logan, president, etc., $5,000 for value received, 12 months after the date thereof, with interest from date; that afterwards, to wit, on the -- day of --, 1904, for value received, the same being wholly unpaid, the said Logan, president, etc., assigned and transferred the said writing obligatory to plaintiff; that when the same became due and payable according to the tenor and effect thereof, it was not paid, and still remains unpaid, by reason whereof defendants became indebted and liable to plaintiff in the said sum of $5,000, and, being so indebted, they, in consideration thereof, undertook and faithfully promised to pay the same to plaintiff on request; and that, although often so requested, they have not, nor hath either of them, paid plaintiff the said sum or any part thereof, but still neglect and refuse so to do, to the damage, etc. The second special count sets out said writing obligatory in full, and, in addition to the averments in said first count, alleges that 50 or more responsible persons signed said writing as required by the condition thereof, and that the proceeds thereof were expended in making a location survey as was necessary, and in paying other necessary expenses attending the same for the said Monroe Central Railroad, as provided thereby.

The plaintiffs in error, C. P. Bradley and 23 others, demurred to the declaration as finally amended, which was overruled; and they then tendered four special pleas in writing, to the filing of which plaintiff objected, and, the objection being sustained and the pleas rejected, C. P. Bradley and W. D. Riley, two of said plaintiffs in error, each tendered a special plea alleging fraud in the procurement of said writing, which pleas, though objected to, were ordered filed. Upon the trial of the issues joined on the plea of non assumpsit, and upon said special pleas filed, the plaintiff obtained a verdict and judgment for $1,104. As requested by plaintiffs in error, the court submitted to the jury the following: "Were there 50 or more of the persons who signed the writing dated October 8, 1904, and on which this suit was brought solvent and responsible for the amount of said obligation at the time it was executed," and to which the jury responded: "In our opinion there were."

Some 12 errors are assigned in the petition of plaintiffs in error; not all of them are relied on in argument here. We will consider those only which appear to us to be meritorious. First, the demurrer to the declaration. The common counts are concededly good. The first special count we think is also good. It alleges a contract under seal importing a consideration, and containing a promise to pay money, a breach thereof, and an assignment thereof to plaintiff, for a valuable consideration, etc. Oyer of the writing obligatory was not craved, and it was not thus made a part of the record so as to render this count bad on demurrer for failure to allege fulfillment of the conditions on which the promise was made to depend. The second special count in which the entire contract is pleaded distinctly alleges fulfillment of the only conditions on which payment was made to depend. This is all that is required. Kern v. Zeigler, 13 W.Va. 707, 3 Syl. No other defects in the declaration are pointed out in briefs or argument, and, perceiving no defects therein, we must hold the declaration good on demurrer.

Next did the court err in rejecting the four special pleas tendered by some of the plaintiffs in error? The order rejecting them shows they were simply tendered; there was no order filing them, or formally making them part of the record, and the order making the tender thereof shows no exception to the action of the court rejecting them. Plaintiffs in error rely on the bill of exceptions or certificate of evidence, which recites not only the tender of the pleas and the rejection thereof, but also that "defendants again excepted." Are these recitals in th e order and certificate of evidence sufficient to make the pleas part of the record? In White v. Toncray, 9 Leigh, 347, Judge Tucker, for the court, ruled that: "Pleas tendered by a defendant in an action at law, and rejected by the court, are not a part of the record, unless made so by bill of exceptions to the rejection of them, or by an order of the court that they shall be made so." And, at page 351 of the opinion, says: "The defendant desired to make them so; but the court, for good reasons doubtless, refused to permit them to be filed. They were of course not filed. Though placed among the papers by the party or the clerk, they were not filed, and were of course no part of the record." This decision, as is said by Judge Green in Sweeney v. Baker, 13 W.Va. 158, 212. 31 Am. Rep. 757, was very properly approved by subsequent decisions in Virginia, and in this state in Hart v. B. & O. R. R. Co., 6 W. Va. 336; but in the former case Judge Green, at pages 212-214 of 13 W. Va., and page 757 of 31 Am. Rep., criticises the reasoning of Judge Tucker, and Judge Haymond for adopting it in Hart v. Railroad Company. In Sweeney v. Baker, the rejected pleas, or the exceptions to their rejection, though not made part of the record by any formal bill of exceptions, were made so by orders of record, and in such cases, syllabus 12 says, the appellate court will...