Roberts. v. Lykins

• Decision Date: 30 October 1928
• Docket Number: (No. 6295)
• Citation: 106 W.Va. 280
• Parties: E. L. Roberts et al. v. B. E. Lykins
• Court: West Virginia Supreme Court

106 W.Va. 280

E. L. Roberts et al.

v.B. E. Lykins

(No. 6295)

Supreme Court of Appeals of West Virginia.

Submitted October 23, 1928,

Decided October 30, 1928.

1. Evidence Parol Declarations of Parties at and Before Exe-

cuting Contract for Sale of "Interest" in Partnership Are Admissible to Show Meaning of Word "Interest."

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. (p. 285.)

2. Same Evidence of Seller's Acts and Declarations After

Executing Contract for Sale of Interest in Partnership Held Admissible to Show Representation That Lease Sold Was Partnership Asset.

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 as tending to show that he did make such representation. (p. 285.)

3. Appeal and Error Matter Decided in Former Appeal Will

Not be Considered Again in Subsequent Appeal in Same Suit; "Law of the Case."

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." (p. 286.)

Error to Circuit Court, Payette County.

Action by E. L. Roberts and another against B. E. Lykins. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Osenton & Lee, for plaintiffs in error.

Hubard & Bacon, for defendant in error.

Lively, President:

E. L. Roberts and H. A. Carper obtained a verdict and judgment against B. E. Lykins for $1,425.00 on February 16, 1928, from which Lykins prosecutes error.

In 1921 B. 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 store room leased by S. D. Lykins from Mrs. Bailey at $50.00 pei month. On April 22, 1924, E. L. Roberts and H. A. Carpen purchased the interests of the two Lykins for $8,000.00 ana assumed the indebtedness of the concern, evidenced by a vriting signed by the parties. The controversy is over the rents which Roberts and Harper were subsequently required to pay and did pay for a store room in which to conduct the business. Three or four weeks after the purchase of the Lykins' mterests, Mrs. Bailey increased the rent from $50.00 to $100.(0 per month. A written lease had been executed by her to S. D. Lykins but was lost. Plaintiffs Roberts and Harper claiued that the lease was purchased by them, was represented by B. E. Lykins as a part of the assets of the partnership, and t\at B. E. Lykins, defendant, further represented to them thatthe lease had an unexpired term of about two and a half yean, Lykins denies that he made such representation, or that he lease went as a part of the assets; on the contrary that X was understood that plaintiffs should take a new lease from Irs. Bailey. An attempt was made to get a new lease from her by all parties at the time the sale was completed. In about thirty days after the sale Mrs. Bailey presented a new lease at $100.00 per month, which plaintiffs refused to sign and after remaining in the store room for several months nd paying the increase, plaintiffs removed their store to anoher building, where they were required to pay $100.00 per month, and brought this suit against B. E. Lykins (S. D Lykins being dead) to recover the increase in the rent so pad 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 five years, as they understood, and had an unexpired terra of, at the time of their purchase of Lykins' interest, of about two and a half 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 m May, 1921, for a term of three years, which would make it expire in April or May, 1924, about the time of the purchase o: the Lykins' interests 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 atime 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 raff of rent, entered into the written contract of sale and purclase above set out by which defendant B. E. Lykins, and S. D). Lykins (now deceased) sold their interest in the 'men's shop" for $8,000.00, plaintiffs assuming all indebtedness of the partnership. Defendant claims that plaintiffs: elied upon the promise of Mrs. Bailey that she would give them a lease; while plaintiffs claim that while they souglt a lease or "binder" from her, they relied upon their puchase of the unexpired lease from defendant and S. D. Lykirs. This controversy was submitted to the jury by instructors and decided in plaintiffs' favor.

The first count in the declaraon embraces the common counts in assumpsit, while the seond count charges that defendant B. E. Lykins representee to plaintiffs in the negotiations and sale to them of his an-his brother's interest in the partnership that he had a leaf? at $50.00 per month on the store room from Mrs. Bailey on which lease there was an unexpired balance of term of about two and a half 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 $50.00 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 two and a half 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 they had to pay for the alleged unexpired term. There was no demurrer interposed.

As above sei 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 three years and expired about the time of the conract 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 lease or the store room. His evidence is to the effect that when tin lease was mentioned in the negotiations he referred plaintiff to Mrs. Bailey for a lease, and that they then attempted o get a lease at $50.00, or a "binder", and failed. "While on the other hand, both Carper and...