Rodes v. Griffith, Rodes & Co.

• Decision Date: 08 June 1926
• Docket Number: 5490.
• Citation: 135 S.E. 244,102 W.Va. 79
• Parties: RODES v. GRIFFITH, RODES & CO. et al.
• Court: West Virginia Supreme Court

135 S.E. 244

102 W.Va. 79

RODES v. GRIFFITH, RODES & CO. et al.

No. 5490.

Supreme Court of Appeals of West Virginia.

June 8, 1926

Submitted February 2, 1926.

Rehearing Denied Nov. 12, 1926.

Syllabus by the Court.

Duress may be asserted against a third party claiming the fruits thereof, where the circumstances impute to him notice of the wrong prior to the accomplishment of its purpose.

Appeal from Circuit Court, Kanawha County.

Suit by Frank S. Rodes against Griffith, Rodes & Co. and others to cancel notes. From a decree dismissing his bill, plaintiff appeals. Reversed and rendered.

Lon H Kelly and England & Ritchie, all of Charleston, for appellant.

R. G Kelly, John L. Rowan, and Morton, Mohler & Peters, all of Charleston, for appellees.

LITZ P.

The plaintiff, Frank S. Rodes, appeals from a decree of the court of common pleas of Kanawha county dismissing his bill for the cancellation of three several notes for $4,546.135 each dated April 26, 1923, signed by himself as maker, and payable to the defendant John L. Rowan, trustee, in one, two, and three years from date, and a trust deed bearing date therewith, in which the plaintiff and his wife conveyed to said defendant certain lands in the city of Charleston to secure the payment thereof, on the ground of duress.

Griffith, Rodes & Co., a corporation with an authorized capital stock of $10,000, divided into shares of $100 each, formerly conducted a tinning business in the city of Charleston. The outstanding capital stock of the company was owned as follows: 33 shares by plaintiff, 35 shares by George M. Griffith, and 25 shares by George C. Griffith. Being financially depressed, some of its creditors, in the latter part of 1922 and early part of 1923, obtained judgments, which remained unsatisfied. In January, 1923, plaintiff, representing the corporation, proposed to pay the creditors 25 per cent. of their claims in cash, and 10 per cent. monthly thereafter. It seems that he planned to make a loan to the corporation upon being secured by a deed of trust on its property. This arrangement, however, was never executed, and on March 21, 1923, the plant of the company was destroyed by fire. The creditors then became more insistent, without avail.

About April 20, 1923, one Ellis T. Crawford, of Charleston, went to Huntington, where plaintiff's brother, C. D. Rodes, resided, and there represented to said C. D. Rodes that plaintiff was being accused of burning the property of the corporation, and that, in order to circumvent his prosecution on the charge, it would be necessary for the plaintiff to secure the creditors. Crawford also urged C. D. Rodes to see George M. Griffith at Charleston concerning the matter. C. D. Rodes immediately communicated with another brother, E. T. Rodes, living in Virginia, and arranged a meeting of the two at Charleston for the purpose of consulting George M. Griffith, as suggested by Crawford. C. D. Rodes and E. T. Rodes, after reaching Charleston, conferred with George M. Griffith, who told them that the plaintiff was being accused of burning the property; the state fire marshal had been investigating the case; the general public believed he was guilty, and that it would be necessary for him to secure the creditors in order to avoid prosecution. The two brothers of the plaintiff at once interviewed the fire marshal, who stated that he was investigating the case, and had sufficient evidence already to warrant an indictment. They remained over night in Charleston, urging the plaintiff to follow the instructions of Griffith in order to avoid the disgrace of prosecution and possible conviction.

A day or two later Charles G. Peters,...