Roots v. Kilbreth
| Decision Date | 28 June 1889 |
| Citation | 9 S.E. 927,32 W.Va. 585 |
| Parties | ROOTS et al. v. KILBRETH et al. |
| Court | West Virginia Supreme Court |
Submitted June 26, 1889.
Syllabus by the Court.
1. Where questions of fact are referred to and passed upon by a commissioner, and the findings of the commissioner are overruled and disaffirmed by the circuit court, the appellate court must determine for itself, from the facts and circumstances disclosed by the record, whether it will sustain the conclusion of the commissioner or the circuit court.
2. A case in which the appellate court, upon the facts and evidence, sustained the action of the circuit court in overruling the findings of the commissioner, and sustaining exceptions taken to the commissioner's report.
Appeal from circuit court, Mason county; F. A. GUTHRIE, Judge.
Gunn & Gibbons, for appellants.
Knight & Couch and Simpson & Howard, for appellees.
SNYDER Presiding.
At the March rules, 1884, the individuals composing the firm of Roots & Co. commenced this suit in the circuit court of Mason county against the Mason City Salt & Mining Company, G. Y Roots and James P. Kilbreth, composing the firm of Roots & Kilbreth, and others, to enforce the sale of certain real estate in said county, conveyed by said salt and mining company to a trustee to secure the payment of 140 coupon bonds of $500 each, and to distribute the proceeds among the owners of said bonds. The bill alleged that 80 of said bonds amounting to $40,000, were held by Roots & Co. as collateral security for the indebtedness of Roots & Kilbreth to said Roots & Co., which indebtedness the plaintiffs alleged was $23,568.93, and that the other 60 of said bonds were held as follows: G. Y. Roots, 30, James P. Kilbreth, 20, and M. M White, 10, of said bonds. James P. Kilbreth answered the bill, denying that the firm of Roots & Kilbreth were indebted to Roots & Co. in the sum alleged, or in any sum; and by way of affirmative relief prayed that an account be ordered, to state and settle the accounts between the firms of Roots & Co. and Roots & Kilbreth. Kilbreth also pleaded usury, and the statute of limitations, in respect to the alleged indebtedness of Roots & Kilbreth to Roots & Co. The trust-subject was sold, and the sale confirmed, without objection, at the price of $12,500, of which sum it was ascertained that about $6,800 would be applicable to the 80 bonds of Roots & Kilbreth held by Roots & Co. as collateral security. The cause was referred to a commissioner to ascertain the holders of said coupon bonds, and to settle the accounts between the firms of Roots & Kilbreth and Roots & Co., and to report in whose favor the balance exists. On the coming in of said report, the court, without adjudicating the true state of accounts between Roots & Kilbreth and Roots & Co., decided that the evidence in the cause showed that the indebtedness of the former to the latter firm was of such an amount as to entitle Roots & Co. to the said $6,800,--the proceeds of the sale applicable to the payment of said 80 bonds held by Roots & Co. as collateral for said indebtedness,--and entered a decree directing the payment of said proceeds to Root & Co., without prejudice to the right of either of said firms to bring a new suit to settle and ascertain the true state of accounts between them. From this decree the defendant Kilbreth brought the cause by appeal to this court. On the hearing here, this court, being of opinion that the circuit court, before directing said $6,800 to be paid to Roots & Co., should have investigated the accounts between Roots & Kilbreth and Roots & Co., and finally determined whether there was any indebtedness by either of said firms to the other, reversed so much of the said decree of the circuit court as decided that Roots & Kilbreth are indebted to Roots & Co. in a sum equal to the proceeds of the sale applicable to the payment of the collaterals held by Roots & Co., and ordered said sum to be paid to Roots & Co., and remanded the cause to the circuit court for further proceedings there to be had in accordance with the principles announced in the opinion filed by this court. Roots v. Salt & Mining Co., 27 W.Va. 483. After the mandate of this court had been entered in the circuit court, that court made an order referring the same to a commissioner to settle the accounts between the firms of Roots & Kilbreth and Roots & Co. The commissioner made a report, which was excepted to by Roots & Co., and the same was recommitted to the commissioner. The defendant Kilbreth, by leave of the court, filed a cross-bill, to which Roots & Co. filed their answer.
From August, 1872, to about October, 1875, G. Y. Roots and James P. Kilbreth were the joint owners of the coal and salt property in Mason county, which was in 1875 conveyed to the Mason City Salt & Mining Company; and they, as partners under the name of Roots & Kilbreth, carried on with said property the business of mining coal, and manufacturing and selling salt. During the same time Roots & Co., a partnership of which G. Y. Roots was the owner of a seven-tenths interest, was conducting a commission business in Cincinnati, Ohio, and the business of both of said firms was for the greater portion of said time under the management of said Roots, and especially was such the case in respect to the firm of Roots & Kilbreth. Roots & Co. acted as the factors or agents of Roots & Kilbreth for selling salt and furnishing supplies; and, while the latter was in active operation, Roots & Co. rendered itemized accounts to it semi-annually; and, after its dissolution, Roots & Co. rendered to it sundry accounts or statements, making in all 22 in number. These accounts show that no supplies were furnished by Roots & Co. after December, 1875, and the last credit for salt sold was given in 1876. In these accounts Roots & Co. charge Roots & Kilbreth interest at the rate of 10 per cent. upon advances made according to an agreement made by G. Y. Roots, acting for the firm of Roots & Kilbreth of which Kilbreth was fully informed, and to which he made no objection at the time. Kilbreth, in his cross-bill, charges that said accounts rendered by Roots & Co. to Roots & Kilbreth are usurious; that they contain overcharges of commissions on salt sold by or through them; that clerical errors appear upon their face; that they fail to credit Roots & Kilbreth with the proceeds of eight coupon bonds of $500 each which ought to be credited; and that, by reason of other errors in said accounts, the firm of Roots & Kilbreth, instead of being indebted to Roots & Co. in the sum of $23,568.93, or any other sum, are the creditors of Roots & Co. for a large amount of money. He then avers that he had not, until recently, discovered the said errors and omissions in said accounts. After the circuit court had decided the cause in May, 1875, and before the appeal was taken from that decree, the commissioners who made the sale of the trust property paid over to Roots & Co. $6,774.77, being the portion of the proceeds of the sale applicable to the 80 bonds held by Roots & Co. as collaterals. The commissioner, after considering the depositions and documentary evidence filed in the cause, reformed and restated the accounts between Roots & Kilbreth and Roots & Co., and reported, in lieu of the alleged balance of $23,568.93 in favor of Roots & Co., that said firm was indebted to Roots & Kilbreth, as of February 6, 1888, in the sum of $7,577.10, and that, in addition thereto, Roots & Kilbreth were entitled to the $6,774.77, proceeds of the sale paid over to Roots & Co., as aforesaid, with the interest thereon, making the aggregate indebtedness of Roots & Co., to Roots & Kilbreth, as of that the date, $15,572.50. To this report Kilbreth filed two, and Roots & Co., eight, exceptions. The court sustained one of the exceptions of Kilbreth, and two of those of Roots & Co., and overruled all the others. After correcting and reforming the report, so as to make it conform to these rulings, it was found that Roots & Co. was indebted to Roots & Kilbreth, as of May 18, 1888, the date of the decree, in the sum of $2,773.04; and for this, and the costs of this suit, the court entered its final decree in favor of Roots & Kilbreth...
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