Newell v. High Lawn Memorial Park Co.

• Citation: 164 W.Va. 511,264 S.E.2d 454
• Decision Date: 25 March 1980
• Docket Number: No. 14353,14353
• Court: West Virginia Supreme Court
• Parties: Donald C. NEWELL, Sr., et al. v. HIGH LAWN MEMORIAL PARK CO. et al. and Price T. Ballard.

Page 454

264 S.E.2d 454

164 W.Va. 511

Donald C. NEWELL, Sr., et al. v. HIGH LAWN MEMORIAL PARK CO. et al. and Price T. Ballard.

No. 14353.

Supreme Court of Appeals of West Virginia.

March 25, 1980.

Syllabus by the Court

1. "When given or stipulated in good faith, a valuable consideration, however small or minimal, is sufficient to sustain a contract." Syl. pt. 1, McCary v. Monongahela Valley Traction Co., 97 W.Va. 306, 125 S.E. 92 (1924).

2. Any person who is not suffering from some disability is entitled to dispose of his property in such manner as he pleases, and it is not the province of the Court to determine whether his bargains are wise, discreet, or profitable.

3. "Suggestion and advice, addressed to the judgment, are not undue influence. Nor is a deed induced by an appeal on the score of gratitude, past kindness, or love or esteem, the result of undue influence." Syl. pt. 8, Delaplain v. Grubb, 44 W.Va. 612, 30 S.E. 201 (1898).

W. E. Mohler, Charleston, for appellants.

Love, Wise, Robinson & Woodroe, W. M. Woodroe, S. Clark Woodroe and Mario J. Palumbo, Charleston, Frederick A. Jesser, III, Fayetteville, for appellees.

NEELY, Chief Justice.

Ruby Trump Ruffner died testate in Fayette County, West Virginia, on 3 October 1975 leaving the residue of her estate to St. Andrews Episcopal Church of Oak Hill, West Virginia. Approximately 21 months before her death, on 12 February 1974 she executed a "contract and escrow agreement" transferring 290 shares of her stock in High Lawn Memorial Park Company, a controlling interest, to Leonard H. Higgins, as escrow agent. The conditions of this escrow were set forth in a purported contract which was between Ruby Trump Ruffner and Price T. Ballard, the appellant.

The condition of the contract was that Mrs. Ruffner would retain the income from her stock in the cemetery business for life, but upon the death of either Price T. Ballard or Ruby Trump Ruffner, the stock would be transferred to the survivor of them. The stated consideration for this transfer was that Price T. Ballard "covenants and agrees to immediately assume The trustees of St. Andrews Episcopal Church brought this lawsuit to have the Contract, Escrow Agreement, and transfer of stock set aside. After hearing all of the evidence and the arguments of counsel, the jury returned a verdict in favor of the plaintiffs, the Trustees of St. Andrews Episcopal Church, and against the appellant. At the trial, the evidence indicated that Mrs. Trump (the name she used after the death of her second husband), had relied upon others to advise her in the management of her business affairs all her life. In her later years she depended upon the appellant for advice on her business matters, and he assumed management of the cemetery, High Lawn Memorial Park Company. While maintaining a facade of independence to the point of eccentricity towards the rest of the world, Mrs. Trump reposed confidence in Mr. Ballard to such an extent that she relied upon his opinions in the smallest matters.

the full management of said corporation and to devote such of his time to the management of said corporation as may be necessary in and about its proper operation and with a full effort towards its profitable operation." Upon the death of Mrs. Ruffner, in pursuance of this Contract and Escrow Agreement, Leonard H. Higgins, the Escrow [164 W.Va. 513] Agent, transferred the stock to the appellant, Price T. Ballard. ¹

It is argued by the appellees that by virtue of Mrs. Trump's dependence upon Mr. Ballard there arose a "confidential relationship" which placed Mr. Ballard in the position of a fiduciary. The appellees argue that this confidential relationship demanded that the appellant exercise the utmost fairness and impartiality in his dealings with Mrs. Trump; however, Mr. Ballard is not a lawyer and did not exercise any official fiduciary capacity such as executor or administrator. The evidence demonstrates that Mr. Ballard was at most a close friend and an employee of a corporation in which Mrs. Trump owned the controlling interest. While the record does not reveal the ages of either Mrs. Trump or Mr. Ballard at the time this transaction was completed, oral argument before this Court indicated that Mrs. Trump was in her early sixties and Mr. Ballard was in his late fifties.

The plaintiff-appellees successfully maintained below that while under the sway of the alleged confidential relationship Mrs. Trump executed the Contract and Escrow Agreement with the appellant and that her transfer of the stock was exacted from her by the use of undue influence and was based upon no consideration. At the trial Mr. Ballard admitted that he gave nothing for the stock transfer because his duties with the cemetery both before and after the execution of the contract were essentially the same; however, the evidence also indicates that Mr. Ballard was a free agent and that the business activity of the cemetery improved dramatically under his management.

The case before us involves this purported contract; however, the facts surrounding

its execution lead the Court to conclude that the instrument has attributes of a contract, a gift, and a trust. An example of the confusion of legal principles which the facts of this case invite is that the case was tried in the lower court on a contract theory, but the doctrine sought to void the contract was that of "undue influence," an equitable principle which is applied almost exclusively to gifts and wills. Cases like the one before us impale the legal mind because the law creates certain categories, most of which have evolved over hundreds of years, and legal questions are expected to fit in one or another of them. Therefore, today, we find a set of round holes into which we are expected to squeeze an equal number of square pegs.

I

The first legal category which threatens our analysis of this case is that of "contract." While the Agreement between the parties was styled a "contract," the entire foundation of this lawsuit would have been decimated if the legal instrument involved had been styled "deed of conditional gift," "deed of gift," or "trust." The record discloses a very close friendship between Mrs. Trump and Mr. Ballard, and it is obvious from all the circumstances surrounding this transaction that what Mrs. Trump intended to do was to make a conditional gift to Mr. Ballard dependent upon his continued management of the affairs of the company. It is also obvious from the record that an implicit part of this contract was that Mr. Ballard would continue his personal attentions towards Mrs. Trump.

The Contract and Escrow Agreement in question were prepared by Mr. Ballard's attorney, but it is also undisputed that Mrs. Trump took the papers to her own attorney and sought his independent advice with regard to the transaction without the interference of Mr. Ballard. While Mrs. Trump was on the border of retirement age, and she depended upon the advice of a series of men, nonetheless, she exercised substantial independent judgment. ² The stated consideration in the contract was that Mr. Ballard would "immediately assume the full management of said corporation" and it is not disputed that he continued a course of vigorous management. We cannot find as a matter of law that there was no consideration since Mr. Ballard, though already an employee of the corporation, could have withdrawn from the management at any time. While the consideration on Mrs. Trump's side was somewhat disproportionate, there was definitely some consideration, as a matter of law, on Mr. Ballard's side.

The doctrine of failure of consideration in the law of contracts is certainly a nebulous one; cases can be found where the slightest consideration is adequate to support a contract ³ while others can be found in which substantial consideration has been held to be "insufficient." ⁴ The doctrine finds its counterpart in the Uniform Commercial It is both very ancient and very good law that friendship alone, no matter how meretricious its overtones, cannot lead to an inference of undue influence. The subject was quite adequately handled during the Chancellorship of Lord Talbot in the case of Cray v. Rooke, (1735) Cas.Eq.Tempore Talbot (Cur. Ch.) 153, where his Lordship held that a bond given to a mistress at the time a man contracted for his own marriage with another woman, for the maintenance of the mistress and her child, was premium pudoris and as such could not be set aside for the heirs but must be paid from the man's estate.

Code provision on unconscionability where the learned commentators on that section are slightly more candid in addressing the inherently subjective nature of the process by which courts review bargains made by individuals. ⁵

Cray v. Rooke, supra is peculiarly dispositive of the issue before us since from the record in our own case it appears there was an element of romance between the appellant and Mrs. Trump. If Chancellor Talbot found such a meretricious relationship between benefactor and mistress sufficient to support a contract for maintenance in 1735, we must say that the relationship between Mrs. Trump and Mr. Ballard is sufficient to support a comparable contract in 1980. While it might be argued that Cray v. Rooke should be distinguished from the case sub judice by the absence, in our own case, of the element of premium pudicitiae, (as distinguished from "pudoris ") we find the element of chastity per se superfluous, particularly since the maintenance contract of Cray was made after the seduction. Thus, the real principle of Cray which instructs our understanding of the ancient law in these matters, and which has made the case notable through the centuries, is that a meretricious consideration is, nonetheless, a consideration. Consequently, on the question of failure of consideration the appellant was entitled to judgment.

II

We must now address the question of whether there was any...