Roberts v. Lykins
| Decision Date | 30 October 1928 |
| Docket Number | 6295. |
| Citation | 145 S.E. 440,106 W.Va. 280 |
| Parties | ROBERTS et al. v. LYKINS. |
| Court | West Virginia Supreme Court |
Submitted October 23, 1928.
Syllabus by the Court.
Where a contract of sale designates what is sold as an "interest" in a certain partnership, parol declarations of the parties at and before the execution of the contract are admissible to show what the parties intended the word interest to include, and of what things were considered or represented to be assets of the partnership.
And where, in a suit for damages against the seller of such "interest" for failure to deliver and transfer a lease which he represented as a part of the assets of the partnership, but which in fact did not exist, and he denies that he made such representation, evidence of his acts and declarations subsequent to the execution of the contract are admissible tending to show that he did make such representation.
It is the general rule that, if a point in controversy has been decided in a former appeal to an appellate court, it will not be considered again in a second appeal in the same suit between the same parties, or their privies. It is regarded as "the law of the case."
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Law of the Case.]
Error to Circuit Court, Fayette County.
Action by E. L. Roberts and another against B. E. Lykins. Judgment for plaintiffs, and defendant brings error. Affirmed.
Osenton & Lee, of Fayetteville, for plaintiffs in error.
Hubard & Bacon, of Fayetteville, for defendant in error.
LIVELY P.
E. L Roberts and H. A. Carper obtained a verdict and judgment against B. E. Lykins for $1,425 on February 16, 1928, from which Lykins prosecutes error.
In 1921 E. L. Roberts, defendant, B. E. Lykins, and his brother S.D Lykins (since deceased) were equal partners in a mercantile business in Mount Hope, Fayette county, and occupied a storeroom leased by S.D. Lykins from Mrs. Bailey at $50 per month. On April 22, 1924, E. L. Roberts and H. A. Carper purchased the interests of the two Lykins for $8,000, and assumed the indebtedness of the concern, evidenced by a writing signed by the parties. The controversy is over the rents which Roberts and Harper were subsequently required to pay, and did pay, for a storeroom in which to conduct the business. Three or four weeks after the purchase of the Lykins' interests, Mrs. Bailey increased the rents from $50 to $100 per month. A written lease had been executed by her to S.D. Lykins, but was lost. Plaintiffs Roberts and Harper claimed that the lease was purchased by them, was represented by B. E. Lykins as a part of the assets of the partnership, and that B. E. Lykins, defendant, further represented to them that the lease had an unexpired term of about 2 1/2 years. Lykins denies that he made such representation, or that the lease went as a part of the assets; or the contrary, that it was understood that plaintiffs should take a new lease from Mrs. Bailey. An attempt was made to get a new lease from her by all parties at the time the sale was completed. In about 30 days after the sale Mrs. Bailey presented a new lease at $100 per month, which plaintiffs refused to sign, and, after remaining in the storeroom for several months and paying the increase, plaintiffs removed their store to another building, where they were required to pay $100 per month, and brought this suit against B. E. Lykins (S.D. Lykins being dead) to recover the increase in the rent so paid by them for a period of 28 1/2 months, being the unexpired term of the lease they purchased and did not get.
Plaintiffs claimed that the original lease was for 5 years, as they understood, and had an unexpired term, at the time of their purchase of Lykins' interest, at about 2 1/2 years; and was represented to them to be a part of the assets sold. One witness, Mrs. Bailey, the lessor, says the lease (which was lost) was executed about April or May, 1921, for a term of 3 years, which would make it expire in April or May, 1924, about the time of the purchase of the Lykins' interest on April 22, 1924. Neither Roberts nor defendant ever saw the lease. However, plaintiff Roberts and defendant went to Mrs. Bailey just before the contract of sale was signed with a written contract of lease on the same terms as the old one, to be executed by her until such a time as her attorney could prepare a proper lease carrying the same rent as then in force. This lease contract, which in terms was to lease the room on the same terms and conditions as the then existing lease until her attorney could prepare a proper lease, and that the lease so prepared should cover the same property at the same rent, was not executed by her. But the parties, notwithstanding her refusal to sign the temporary paper, binding her to give a lease at the then rate of rent, entered into the written contract of sale and purchase above set out by which defendant, B. E. Lykins, and S.D. Lykins (now deceased) sold their interest in the "men's shop" for $8,000; plaintiffs assuming all indebtedness of the partnership. Defendant claims that plaintiffs relied upon the promise of Mrs. Bailey that she would give them a lease; while plaintiffs claim that, while they sought a lease or "binder" from her, they relied upon their purchase of the unexpired lease from defendant and S.D. Lykins. This controversy was submitted to the jury by instructions and decided in plaintiffs' favor.
The fist count in the declaration embraces the common counts in assumpsit, while the second count charges that defendant, B. E. Lykins, represented to plaintiffs, in the negotiations and sale to them of his and his brother's interest in the partnership, that he had a lease at $50 per month on the storeroom from Mrs. Bailey, on which lease there was an unexpired balance of term of about 2 1/2 years, which would be included in the sale, as one of the assets of the business, and which he would assign and have transferred to them; and, relying upon such representation, and treating and deeming the alleged lease as a part of the assets of the concern, they made the purchase and paid the purchase price, but that defendant failed and refused to carry out his agreement and representation, wherefore they were required to pay, and did pay, an increased rental of $50 for the remainder of the term of the alleged lease (about 28 months). The substance of this count is that defendant breached his agreement to assign and have transferred to plaintiffs a lease extending for about 2 1/2 years, which he represented as a part of the assets plaintiffs were purchasing from him, whereby they were damaged to the extent of the increase in rent which they had to pay for the alleged unexpired term. There was no demurrer interposed.
As above set out, by the evidence of Mrs. Bailey, the only person who testified to the contents of the lost lease, it appears that the lease was only for 3 years, and expired about the time of the contract of April 14, 1924. Defendant Lykins, denied that he at any time, or that his brother in his presence, represented to plaintiffs or either of them that there was an unexpired...
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