Sansom v. Sansom
| Decision Date | 23 June 1964 |
| Docket Number | No. 12225,12225 |
| Citation | 148 W.Va. 603,137 S.E.2d 1 |
| Court | West Virginia Supreme Court |
| Parties | R. B. SANSOM et al. v. P. W. SANSOM. |
Syllabus by the Court
In order for the ten year statute of limitations to be applicable, there must be a contract in writing and the obligation or liability must grow immediately out of the written instrument and not remotely. The obligation of an agent for the payment of money to his principal which is not in writing is based on an implied contract and the statute of limitations applicable thereto is five years. The statute commences to run when the right to sue acrues, and the mere delay of the payments that may have been due or the refusal to pay such payments does not constitute fraud which tolls the runnings of the statute.
J. Floyd Harrison, William J. Wells, Wayne, for appellant.
Greene, Morgan & Ketchum, Edward H. Greene, Claude M. Morgan, Chad W. Ketchum, Huntington, for appellees.
This is an appeal from a final judgment of the Circuit Court of Wayne County, West Virginia, of November 21, 1962. The appeal and supersedeas was granted by this Court on March 25, 1963, and the case was submitted to the Court for decision on briefs at the April Special 1964 Term.
The procedure used in connection with this case in the lower court is quite confusing. The action was started by a notice of motion for judgment some time in June, 1959, based on an implied contract for a sum certain under the old procedure. The record indicates that a notice of motion for judgment was filed on June 17, 1959, but was not served on the defendant until June 18, 1959. An affidavit was filed with the notice of motion for judgment, and although an order was entered stating it was the intention of the defendant to file a counter affidavit, no order filing it was contained in the record. Another order indicates that a demurrer had been filed to said counter affidavit, which was sustained by the court, and a new counter affidavit was ordered filed in said order, but none of these papers are contained in the record. The record does contain a plea of the statute of limitations filed by the defendant on February 29, 1960, to which the plaintiffs filed a replication on March 31, 1960, alleging fraud on the part of the defendant, and that, therefore, the statute of limitations was not applicable, after which the Circuit Court of Wayne County referred the case to a special commissioner to take evidence and report his findings. The special commissioner conducted hearings, took testimony of the witnesses and filed his report with the court on January 5, 1961, in which report he found that the defendant was guilty of fraud, but that by virtue of the lapse of time from the commission of said fraud, the statute of limitations was applicable. Therefore, the findings of the special commissioner were in favor of the defendant and against the plaintiffs, to which report exceptions were timely filed by the plaintiffs, after which the Circuit Court of Wayne County entered an order awarding judgment in favor of the plaintiffs in the amount of $2726.60, without any reasons being contained, either in the order or otherwise, for the awarding of the judgment in this amount. The motion to set aside the judgment was overruled by the trial court on November 21, 1962, after which time this appeal was applied for and granted by this Court.
The action involved in this case is based on a lease from the two plaintiffs, R. B. Sansom and Andrew Sansom, the defendant P. W. Sansom, and their mother, Sarah Sansom, to the United Fuel Gas Company dated January 9, 1934, wherein the lessee agreed to pay quarterly in advance to the lessors, the plaintiffs and defendant in this action, all of whom were 'parties of the first part', $300.00 a year for the gas wells drilled on the premises leased, and the gas therefrom as marketed and used. The lease contained a provision that the payments of the money due the plaintiffs under the lease 'may' be made to P. W. Sansom 'who is hereby appointed agent of the parties of the first part for such purposes'. The notice of motion for judgment alleged that the defendant had failed to pay over to the plaintiffs $200.00 a year, received by him from the United Fuel Gas Company, to which they were entitled from the date of the lease, from 1934 to 1956, in the amount of $7964.00. The proof showed that no well had been drilled on the property involved in the lease until 1937, and that in 1957 the two plaintiffs requested that the payments of $200.00 be made directly to them by the United Fuel Gas Company, which then complied with this request.
Several stipulations waiving any irregularity in connection with the pleadings, the appointment of the special commissioner and other matters were entered into by the parties. The plaintiffs conceded in their brief that in any event they would only be entitled to $200.00 a year from 1937 until 1957, or for a period of twenty years. The defendant contended that he had paid the plaintiffs all that was due and owing to them regarding the matter in question, either by virtue of payments, other property transactions, or for money expended in the upkeep of their mother who was also a party to the original lease and who had since died. The record indicates that it was certified by the clerk of the trial court after it had been filed in this Court.
It will be noted that this action continued in the trial court, from the time it was instituted until final disposition by said court, for a period of about three and one-half years. It was...
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