Plaintiff v. Whitaker Iron Co..

• Decision Date: 11 December 1895
• Citation: 41 W.Va. 574
• Parties: Thompson et al. v. Whitaker Iron Co. et al.
• Court: West Virginia Supreme Court

41 W.Va. 574

Thompson et al.

v.Whitaker Iron Co. et al.

Supreme Court of Appeals of West Virginia.

Submitted September 9, 1895

Decided Dec. 11, 1895.

Equity J urisdiction Bailment.

Bailment is not such a trust as gives a court of equity jurisdiction.

Equity Jurisdiction Btll of Discovery.

A pure bill of discovery need not state that discovery is indispensable to sustain the plaintiff's proceeding in another court, nor that he has no other evidence, nor is it objectionable that the bill shows he has other evidence; but a bill for discovery and relief on a demand not cognizable in equity, the only ground of jurisdiction being the need of discovery, must state that discovery is indispensable for want of other evidence; and if it appear from the bill or on proof that the plaintiff has other adequate evidence, the bill will be dismissed on demurrer or hearing. It is otherwise where the demand is itself proper for a court of equity.

Equity Jurisdiction Cause of Action.

Averments showing equitable jurisdiction, but shown by other matter of the bill and its manifest cast and objects to be merely colorable for jurisdiction, will not give equity jurisdiction, if the real cause of action is one for which he has adequate remedy at law.

Equity Jurisdiction Bile of Discovery.

The fact that statute has made adversary parties witnesses for each other at law does not oust equity of jurisdiction for discovery.

Statute of Limitations Demurrer Laches.

The defenses of the statute of limitations and laches and stale demand may be made by demurrer.

Statute of Limitations Demand Reasonable Time.

If a demand be necessary before suit, the period of limitation under statutes of limitation does not start until demand. But demand must be made within reasonable time, which is the term fixed by the statute of limitation, if not made before. Where no demand is shown it will be presumed as made within that period, and the statute will then run.,

Statute of Limitations Cause of Action Fraud.

Where a cause of action arises out of a fraud, the statute of limitation runs from its perpetration, This does not apply to fraudulent transfers.

8. Statute of Limitations Suspension of Statute of Limitation.

Under section 18, chapter 104, Code, it requires some positive that is, affirmative act by the defendant to operate uuder the clause, "or by any other indirect ways or means obstruct the prosecution of such right." Merely silence will not do, but there must be some act designed to conceal the existence of liability, and operate in some way upon the plaintiff, and prevent or delay suit for it.

9. Bill of Discovery Incriminating Discovery.

A court of equity will not compel a discovery if it may possibly lead to or aid in the prosecution of the party for crime.

10. Statute of Limitations Conversion of Personal, Property.

The period under the statute of limitations for an action for the unlawful conversion of personal property, or for its proceeds, if sold, is five years.

IT. M. Russell for appellants, cited 2 Pom. Eq, Jur. §§ 1051, 1052, 1080, 917; 79 Va. 449; 87 Va. 162; 2 Rob. (old) Pr. 44, 45; 1 Leigh, 163; 1 Graft. 110; 6 Gratt. 427; 1 Munf. 63; 1 Munf 98; 21' Gratt. 263; 5 W. Va. 33; 10 W. Va 243; 16 W. Va. 497; 21 W. Va. 504; 26 W. Va. 440; 24 W. Va. 61; Story's Eq. Plead. §§ 578, 595, 524; 2 Story's Eq. Jur. § 1494 and note; 76 Va. 12; 31 W. Va. 487; 106 U. S. 99; 89 N". C. 159; 182 111. 80; 47 Kan. 606; 152 Mass. 49; 6 W. Va. 179; 4 Leigh, 474; 120 17. S. 130; 130 II. S. 684; 21 Wallace 342; 76 Me. 71; Code, W. Va. Oh. 104, § 18; 101 U. S. 135; 37 W. Va. 3; Wood on Limitation, 288, 255; 99 Pa, St. 421; 145 U. S. 499; 38 S. Car. 361; 88 Ga. 333; 113 Pa. St. 417; 11 S. W. Rep.(Ark.) 693; 107 111. 389; 107 Pa. St. 336; 125 Ind. 421; 39 Pa. St. 92; 37 Vt. 411; 72 Mo. 640; 32 Pa. St. 22; 62 Iowa, 751; 92 Ind. 580; 36 Kan. 628; 34 Pa. St. 12; 40 Vt. 540; 22 N. II. 217; 22 Ohio St. 27; 36 Mich. 487; 10 Pick. 112; 145 Mass. 503; 54 Md. 527; 110 Pa. St. 428; 24 W. Va. 594.

W. P. Hurbard for appellees, cited 5 W. Va. 33; 1 Am. & Eng. Enc. Law, 130; 16 W. Va. 717-722; 8 W. Va. 584; Code, c. 77, s. 25; Id. c. 85 ss. 2, 4, 10; Id. c. 99, s. 14; Id. c. 145, ss. 18, 19, 20; 24 W. Va. 61; 1 Gratt. 110; 23 Gratt. 47; 10 W. Ya. 247; 16 W. Va. 546; 87 Ya. 170; 2 Sto. Eq. Jur. § 1493b; 10 W. Ya. 247; Sto. Eq. PI. §§ 19, 311; Sto. Eq. Jur. § 1483; 4 Johns. Ch. R. 409; 44 Miss. 677, 681; 1 Johns. Ch. R. 547, 548; Mit. & Tyler, Eq. PL 283, 284; 1 Morris (Iowa) 291, 384; 26 Mo. 253; 2 Edw. Ch. R. 605; 26 Mich. 102; 4 Min. Inst. (s. p.) 1130; 9 Gratt. 379; 25 Gratt. 161: 21 W. Va. 601; 34 W. Ya. 217; 23 W. Ya. 108; 19 Pick. 112; 32 Pa. St. 22; 72 Mo. 640; 62 Iowa, 751; 36 Kan. 634; 34 Pa. St. 12; 40 Yt. 544; 22 1ST. II. 217; 22 Ohio St. 27; 145 Mass. 503, 507; 36 Mich. 487; 92 Ind. 580, 588; 105 Mo. 486; 101 Cal. 673; 41 Fed. Rep. 589; 4 Yt. 491. 18 Pa. St. 25; 31 Pa. St. 165; 8 W. Ya. 442-3; 105 Mo. 486; 6 W Ya. 168, 178-180; 116 Ind. 80; 101 [J. S. 135, 567; 138 Mass. 570; 50 Tex. 637; 73 111. 606; 5 B. & C. 147; 17 Gratt; 322, 347-48, pt. 11 of syl.; 46 Ohio St. 604; 5 Humph. 290.

This is a suit in equity in the Circuit Court of Ohio County by Thompson and Bonnell against the Whitaker Iron Co., the bill alleging: That in February, 1880, Quincy, under whom the plaintiffs claim, agreed with the Whitaker Iron Company, a corporation, to sell it one hundred tons of iron, and, when it was delivered, the company refused to accept it, because it did not comply with the contract. That a correspondence between the parties ensued, and resulted in a final refusal by the company to take the iron, and in a letter of March 11, 1880, communicating such refusal, the company said to Quincy: "We regret we can not help you out, and the iron is here, but will cheerfully aid you in any manner we can in disposing of it. In meantime it will be well cared for, being in our yard, at no expense to you; except any, necessary handling and moving out when disposed of, Should anything occur to change our views, or we seethe way clear to use it or find a place for it, we will communicate with you, and will promise to buy no iron of its character without first advising you." That no correspondence or communication between the parties took place after this letter until March, 1892. That Quincy and those claiming under him permitted the iron to remain, as they believed, in the hands of the Whitaker Iron Company, in accordance with the arrangement suggested in the letter, without inquiry, confiding in the honesty of Kelson E. Whitaker, then its secretary, and later president, and in the safety of the iron in their charge, and trusting the iron would remain in the yard, and trusting that should anything occur to change the views of the company or of said Whitaker, or in case the company could see its way clear to use the iron or find a place for it, the company and Whitaker would communicate with the owners of the iron. That in March, 1892, Bonnell called on Whitaker, then the president of said company, and inquired about the iron, when Whitaker said he did not recollect holding any such iron, when a letter touching the iron was shown him, and then he said he had an indistinct recollection of some iron which the company had sold some years previous, and that might have been it, and promised to look up the matter and report to the owners. That, not hearing from Whitaaker, they wrote him 23d of March, 1892, but received no answer, and on 26th February, 1894, wrote again asking if the iron was accessible so they might dispose of it, and received a reply to the effect that the company, so far as it had been able to investigate, wasted to believe that the iron had been reshipped to Quincy, suggesting the long time that had elapsed, questioning the authority of the plaintiffs to discuss the question, and assuring them that the iron was not then in possession of the company, and had not been for a long while, and declining to take the matter up or treat on the subject. That later an attorney demanded the iron of the company, and it refused to deliver the iron or account for its proceeds. The bill alleged that Whitaker and the company conspired to cheat and defraud Quincy and, to that end, sold or used the iron, and converted the same or its proceeds to the use of the company. The defendant demurred to the bill, assigning as causes adequate remedy at law, the statute of limitation of five years, laches, that no discovery could be made by defendants of any value to plaintiffs, and that no right of recovery, or other equity was shown by the bill. The demurrer was sustained, and the bill dismissed, and the plaintiffs appeal.

Brannon, Judge (after stating the facts):

Equity jurisdiction in the case can not be sustained on the theory of trust. If a trust, it must be an express one. What were its terms? The trustee was not vested with the title and charged with any specific duty or agency for the benefit of Quincy. Was it a simple or passive trust, the trustee being a mere passive depositary of the property, with no active duties to perform? It could not be even this, in any other sense than a common-law bailment; for no title vested in the company, but it had possession only, and no property, at utmost, but that special property which rests in the bailee under the law of bailment. It was not an active trust, as that is a trust in which the trustee is not a mere depositary, but has special active duties to perform, pointed out by him who created the trust, by terms of its creation. 27 Am. & Eng. Enc. Law, 6. The company's letter is all that could originate a trust, and it was not accepted by Quincy, as he did not reply to it. It remained unaccepted for twelve years, at least. No trust relation was created between the partie. If a bailment, it was simply a deposit, for mere safe keeping an accommodation, without specification of purpose of bailment, except for safe keeping, without reward. And if we say that there...