Radcliff v. Poijndstone et als.

• Decision Date: 05 April 1884
• Citation: 23 W.Va. 724
• Court: West Virginia Supreme Court
• Parties: Radcliff v. Poijndstone et als.

23 W.Va. 724

Radcliff

v.Poijndstone et als.

Supreme Court of Appeals of West Virginia.

Submitted June 11, 1883

Decided April 5, 1884.

Where the consideration of a defendant's undertaking or promise is for money or property to be furnished to or received by a third person, if the transaction be such that the third person remains responsible to the person who fu rushes him with such money or property, or from whom the consideration proceeds, such promise or undertaking is collateral, and under the statute of frauds will not bind the defendant, unless it be in writing. (],. 781.)

2. A case brought by a creditor of the husband against the husband and wife, to charge the estate of the wife with her husband's debt upon her promise to pay the same, in which it was held that herpromi.se was collateral and not being in writing was void by the statute of frauds.

Woods, Judge, furnishes the following statement of the case:

On the 17th day ot October, 1878, Richard S. Radpliff, residing in the county of Marion in this State, instituted his suit in chancery in the circuit court of that county, against George W. Poundstone, and his wife Mary A, Poundstone, Samuel Thompson, residing in Pennsylvania, John W. Corothers of the said county of Marion, and the Discount and Deposit Bank of Brownsville, in Pen lsylvania, and sued out an order of attachment therein, against the estates of the defendants other than Corothers, for the sum of three thousand three hundred and fifty dollars and sixteen cents with interest and costs, which on the same day was executed on the Pirst National Bank of Fairmont, as a garnishee, having in its possession funds belonging to the absent defendants.

The plaintiff's bill alleged, that "he and George W. Poundstone, a resident and citizen of Pennsylvania, entered into a co-partnership for the purpose of buying and selling coal upon the Monongahela and Ohio rivers in this and adjoining States bordering thereon; that they mutually agreed with each other to furnish equal amounts of the capital, to be used in the business, and to share equally the profits and losses, which should result from their business; that said business should be conducted in the plaintiff's name, and that he should give his personal attention to the management thereof." His bill further alleged, that at the time of entering into said contract of co-partnership, lie was indebted to said George W. Poundstone, and Mary Poundstone his wife in the sum of three thousand two hundred and forty dollars, for which lie, with John W. Corothcrs as his surety on the 10th day of June, 1872, executed to them Ins note, payable one year thereafter; that it was thereupon agreed between the plaintiff and said George W. Poundstone, that he (the plaintiff) should advance all the money necessary to commence said business, and that the one half of the money or capital so advanced and put into said business by the plaintiff, should be charged against said note of three thousand two hundred and forty dollars, and credited thereon as payments either in part or in full, according as such advances of capital should be sufficient or insufficient to entitle the plaintiffs to credits on said note to the full amount thereof; and this agreement being fully made known to the said Mary Poundstone, she fully concurred in the same, and consented to the said arrangement, and expressly agreed that all sums of money and capital furnished to her said husband by the plaintiff in pursuance of the said'agreement, should constitute credits upon said note; and then avers that pursuant to this agreement between himself, Poundstone and wife, he did from time to time advance for the use of said co-partnership various sums of money amounting in the aggregate to six thousand six hundred dollars and thirty-two cents, whereof one half was advanced for George W. Poundstone; that the firm continued until June, 1873, when it had made considerable losses, which the said George W. Poundstone refused to pay or to credit on said note, which they endorsed to the defendant Thompson who endorsed it to the Deposit Bank of Brownsville, which placed it in the said First National Bank of Fairmont for collection, to which bank the defendant Corothcrs as the plaintiff's surety paid it, and that the proceeds thereof are the property of George W. and Mary Poundstone. The plaintiff claims in his bill, that for the advances so made by him to George W. Poundstone he is entitled to recover against him, the sum of three thousand three hundred and fifty dollars and sixteen cents which is justly due from him, and that he is entitled to attach the proceeds of said note in possession of the First.National Bank of Fairmont to answer any decree which he may obtain against said George W. Poundstone; and prays that said Poundstone and wife may be decreed to pay him said sum of three thousand three hundred and fifty dollars and sixteen cents; thai said funds in bank may be subjected to the payment of his said demand, and for general relief. The First National Bank of Fairmont and Corothers answered the bill, admitting the payment of the note, and that the proceeds were held by said bank subject to the orders of the court.

Mary A. Poundstone answered at length, denying with the utmost precision, the truth of every material allegation of the plaintiff's bill, and especially that she ever agreed or consented that any money or capital that the plaintiff might, should or would furnish, or had furnished to her husband, as his half of the capital to be used in said pretended co-partnership business should be credited on said rote for three thousand two hundred and forty dollars, or should constitute credits on said note; or that any such agreement or arrangement, as that set forth in the bill, or that any of like effect was ever made known to her, or that her consent or assent was ever asked to any such arrangement, or that she ever consented thereto. She avers that the three thousand two hundred and forty dollars, at the time she lent it to the plaintiff and ever since that day, was her own separate estate, and was owned by her before her inter-marriage with her present husband, which took place on the 17th day of May, 1872, and that her husband had not then, am he never has had any interest in, or control over any portion of said money all of which facts were well known to the plaintiff before and at the time he borrowed it from her, and she gives a reasonable explanation of the fact that the note was made payable to her and her husband, and not to herself alone. None of the other defendants wrere served with process or appeared to the cause, and they were regularly proceeded against as absent defendants. The plaintiff replied generally to all the answers filed. A large number of depositions were taken and filed on both sides, and the court heard the cause on November 5, 1875, and entered a decree settling the principles of the cause, declaring the said partnership established, and that by virtue of said co-partnership between the plaintiff and George YV. Poundstone, and the assent of the defendant, Mary A. Poundstone, to the same, and her agreement with the plaintiff as alleged in his bill, the proceeds of the said note of three thousand two hundred and forty dollars, should be subject to the amount which should appear to be due to the plaintiff from the defendant, George W. Poundstone, upon a settlement of the business of said partnership, and referred the cause to a commissioner to settle the partnership transactions and to ascertain the amount of the fund in bank subject to the plaintiff's attachment. On the 21st day of April, 1876, the cause was finally heard, when the court entered a personal decree in favor of the plaintiff against the defendant, George W. Poundstone, for the sum of three thousand seven hundred and eighty-seven dollars and thirteen cents with interest thereon from that day and his costs; and that the said First National Bank, of Fairmont, pay to the plaintiff the sum of three thousand six hundred ami forty-one dollars and seventy-nine cents, which from the commissioner's report appears to be in its possession subject to the plaintiff's attachment, and that said sum be applied as a credit upon the amount decreed to the plaintiff, and that for the balance, to-wit: two hundred and sixtyseven dollars and fifteen cents the plaintiff had leave to sue out execution.

From these two decrees the defendannt, Mary A. Poundstone, has been allowed an appeal to this Court.

P. IP Keek for appellant.

James Morrow, jr., for appellee.

Woods, Judge:

The appellant assigns seven grounds of error in said decrees, the first and third of which, if well taken are conclusive of all the others, and must end this controversy as far as she is concerned. The other five grounds of error, if such they be, affect the interest of the defendant George W. Poundstone who has never appeared in the cause, and wdio when these decrees were rendered, had his day in court to make the same appear.

The substance of the first ground of error assigned is, that neither of said decrees against appellant or her husband was warranted by the evidence, in this, that the evidence fails to establish any indebtedness or liability, of George W. Poundstone, or appellant to the plaintiff, or any contract or agreement between her and the plaintiff, or between her husband and the plaintiff, which was binding on her, to make the said three thousand two hundred and forty dollars, liable for the losses, debts, liabilities or defaults of her...