Scott & Wtoodruff v. Hughes.

• Decision Date: 21 December 1909
• Citation: 66 W.Va. 573
• Court: West Virginia Supreme Court
• Parties: Scott & Wtoodruff v. Hughes.

66 W.Va. 573

Scott & Wtoodruff

v.Hughes.

Supreme Court of Appeals of West Virginia.

Submitted June 5, 1909.

Decided December 21, 1909.

1. Exceptions, Bill of Signing Time Termination of Term.

If a vacation order by a judge does not show that a bill of exceptions was signed within thirty days after the close of the term at which judgment was rendered, the court will read the order of the circuit court showing the date of the close of the term. (p. 574).

2. Mixes and Minerals Contracts Assignment Breach Assignee's Liability.

Under the agreement involved in this case it was not the binding duty of Scott & Woodruff to remove liens, but Hughes had the right to do so, out of purchase money in his hands going to the land owners, if they would consent, and if they would not, then to remove the liens out of money in his hands going to the landowners and charge it to them, and Hughes failing to do so, and letting the options lapse from time, Hughes must answer to Scott & Woodruff for the amount stipulated to be paid them by Hughes. (p. 577).

3. Appeal and Error Rulings on Evidence Prejudice.

The admission of improper evidence is not cause for reversal if it is immaterial in the decision of the case. (p. 581).

Error to Circuit Court, Marshall Count.

Assumpsit by Scott & Woodruff against G. Charles Hughes. Judgment for plaintiffs, and defendant brings error.

Affirmed.

S. Bruce Hall and Simpson & Showacre, for plaintiff in error.

C. C. Newman and McCamic & Clarke, for defendants in error.

Brannon, Judge:

A preliminary question arises. It is contended that the evidence and facts in this case cannot be considered for want of bills of exceptions. One ground of this claim is that the order of the judge in vacation showing the execution of the bills of exceptions, does not on its face show that the bills were made within thirty days after the close of the term of court. A certiorari has brought to us a copy of the order of the court showing the date of the adjournment, and this brings the execution of the bills of exceptions within the thirty days. But the position of counsel is that we cannot use this order for this purpose. It is argued that that order is not a part of the record in this case, and that we cannot go outside of the record of this particular case, and if we cannot find from the face of this vacation order that it was within time, the bills are lost. Much authority is cited for this position, 'we must confess. Justices v Barrington, 6 Ga. 578; Davis v. Iron Co., 143 Ind. 142, and other cases. But we think this is very technical. When the judge has certified that the bill was signed, but has omitted to state the close of the term, it would be hard to make the party lose the benefit of his exception from the accidental omission of the judge to show in his certificate the date of the close of the term, or to state that the bill was signed within thirty days of the close of the term. The certificate ought to do one or the other. Our practice has not in the past conformed to the rule which counsel would impress upon us by authorities from other states. We have heretofore supplied this deficiency by sending for the order closing the term and we see no reason to depart from our usage in this respect.

The certificate of the judge says that the first hill "includes all the evidence taken upon the trial of the above entitled case together with the exhibits filed therein, and the second contains the instructions". Turning to them we find the documents called exhibits to be shown in the second bill of exceptions, not in the first, as the Judge's order states; but in giving these exhibits in the second bill of exceptions we are referred to the pages of the first bill of exceptions where those exhibits are introduced. Thus in a sense these exhibits are referred to in the first bill of exceptions. But we read both bills together, and so those exhibits be found in either they are parts of the record.

B. T. Parsons, T. I. Pyles and D. P. Mason each executed to F. V. Yoho contracts known as options giving Yoho right to purchase by a certain time the coal in three separate tracts of land owned severally by Parsons, Pyles and Mason. These option contracts came by assignment to the ownership of Scott & Woodruff, as partners. Scott & Woodruff made a written contract with G. Charles Hughes, 5th January, 1906, by which they did "transfer, assign and set over unto the said party of the second part (Hughes) all their right, title, interest, claim and demand in and to the following enumerated agreements", specifying a number of options, among them the three named above. The said contract between Scott & Woodruff and Hughes provided that Hughes should pay, as a consideration for such assignment of the options, the difference between the purchase money going to the landowners by the options and twenty-three dollars per acre, "said difference being the amount to be paid as titles to the coal are secured under the agreements of purchase hereby transferred." The said agreement contained these further provisions: "The parties of the first part agree on their part as follows: (1) To endeavor to secure at their own expense the said agreements to be acknowledged for record by the parties therein. (2) To procure and deliver acceptances either duly signed by the parties, or legally served on the parties for such agreements as now appear on their face to need same. (3) In the event that title fails to any agreement or agreements herein transferred, or becomes involved in legal troubles so that the coal cannot be secured thereunder, the said parties of the first part agree on their part to release said party of the second part from payment of the commissions herein agreed to be paid on the tracts for which the coal is not secured, and also agree in that event that the proportionate amount of the cash payment this day made and receipted for herein on the tracts for which the coal is not secured, shall be applied as a credit on the amount to become due under this agreement, and be deducted therefrom. And it is hereby further understood and agreed by and between the parties hereto that no commission shall be lost to the parties of the first part by reason of any default or neglect by the party of the second part." The options assigned by Scott & Woodruff to Hughes provided that the landowners "agree to sell and convey to the said party of the second part, in fee by general warranty deed, and clear of incumbrances and defects of title, all the coal underlying that certain tract of land", describing the tracts. Hughes did not take up the land under these options; that is, he took no deeds, but let the options lapse from time, and Scott & Woodruff brought an action of assumpsit in the circuit court of Marshall county against Hughes to recover from Hughes the difference between the amount to which the tracts would come in money and the sums payable to the landowners under the options. The case was tried by a jury and resulted in a verdict and judgment in favor of Scott & Woodruff for the full amount claimed by them. Hughes sued out a writ of error.

Hughes seeks to defend on the theory that there were certain liens incumbering the land, one a deed of trust, one a vendor's lien and the other a decree lien. He says that before Scott & Woodruff could demand their money under the contract assigning the options to him those liens must have been removed. This involves the construction of the contract between Scott & Woodruff and Hughes. Hughes was to pay the landowners. Was it the duty of Scott & Woodruff to remove these liens before they could demand that Hughes take up the lands under the options and pay them their money? The court is of the opinion that the effect of the transaction between Hughes and Scott & Woodruff is that Scott & Woodruff sold to Hughes only mere options, the right and power to carry out the options; that the assign merit deprived Scott & Woodruff of power to get deeds or to enforce the options and placed such power solely in Hughes. The court thinks that by the contract Scott & Woodruff took upon themselves only the duty to get the landowners to acknowledge the options and to procure acceptances from the landowners of notice that Hughes exercised the option to take the land, or serve notice thereof on the landowners; and that beyond that the contract placed no duty upon Scott & Woodruff; that it was the duty of Hughes to get deeds from the landowners, as the power to do so, after the assignment, was vested in him only, and Scott & Woodruff could no longer enforce the options, they having parted with the options and vested all rights and powers under them in Hughes. The court thinks it was not the duty of Scott & Woodruff to remove those liens or advance money to do so. The court thinks that as Hughes had money in his hands to pay the landowners for the land, it was his duty to obtain from them deeds, deducting from the purchase money the incumbrances, if the landowners consented, and if they did not, then Hughes must nevertheless take deeds, and then pay off and retain the liens out of money going to the landowners under the contract of assignment. Scott & Woodruff did not make a general warranty of the land, did not covenant to warrani it. They did agree that if any of the land should be lost by superior title they would abate from the money going to them that proportion...