Scraggs v. Hill.

Decision Date01 April 1893
Citation37 W.Va. 706
PartiesScraggs v. Hill.
CourtWest Virginia Supreme Court
1. Covenant Dismission Assignment Cancprvlation.

Where the agreement upon which an action of covenant is predicated appears to have been assigned to a third party by a written assignment attached thereto, and said written assignment appears to have been cancelled by lines drawn across the same, said agreement being in the possession of the plaintiff, it is error to dismiss his action for want of a formal re-assignment of the agreement before the institution of the suit.

2. Covenant Declarations Construction of Contract.

When the language of a written agreement on its face is ambiguous, the courts will look at the surrounding circumstances existing when the contract was made, at the situation of the parties and the subject-matter of the contract, and will even call in aid the acts done by the parties under it, affording a clue to the intention of the parties; but the Court never resorts in such a case to the verbal declarations of the parties either before, at the time of, or after the execution of the contract, to aid in giving construction to its language.

3. Coven an t-Ev i de ngb.

The plea of "covenants performed" can only be supported by evidence which shows that the defendant has performed his covenant, and not by evidence showing that his own performance was excused by the act of the plaintiff or any other.

J. E. Chilton for plaintiff in error cited 4 Rand. 266; 5 Gratt. 1; 15 W. va. 718; Code, c. 99, s. 14; Chitt. Cont. 1365; 3 How. 483; 5 Pet. 580; 11 W. Va. 535.

W. E. Chilton and 0. Johnson for defendant in error cited 13 W. Va. 718; 11 W. Va. 535.

English, President:

This was an action of covenant brought in the Circuit Court of Boone county by Samuel Scraggs against A. J.Hill on the 2d day of June, 1886. On the 26th clay of July, 1886, the defendant demurred to the plaintiff's declaration, and to each count thereof, which demurrer was overruled by the court, and thereupon the defendant pleaded "covenants performed," and issue was joined thereon; and on the 18th day of April, 1888, the case wTas submitted to the court in lieu of a jury, which resulted in a finding for the defendant; and thereupon the plaintiff moved the court to set aside the finding, and grant him a new trial, which motion was overruled, and the plaintiff excepted. The plaintiff then moved the court to render judgment in his behalf, which motion was also overruled, and the plaintiff again excepted; and thereupon the court dismissed the plaintiff's action, without prejudice to any other action he or his assignee might be advised to bring.

It appears from the bill of exceptions, which was taken by the plaintiff, that in order to maintain the issue on his part he offered in evidence a certain writing in words and figures as follows:

"An article of an agreement, made and entered into this, the tenth day of June, 1881, between Samuel Scraggs, of the first part, and Sylvester Chambers and A. J. Hill, of the second, part, all of the county of Boone and State of West Virginia, witnesseth that the said second party agrees to stand responsible for the remaining part which is against the land, for non-payment which now, under a certain contract between J. II. Gray and MeNeely, on the Scraggs lands on Camp creek for all the poplar timber, also the poplar timber on A. J. Hill's farm on the river, is now agreed that the timber on both places is to satisfy the remaining payments now against it, and, if it should fail to satisfy, the said Chambers is to pay twenty five dollars, and A.J. Hill the remainder of the unsettled part which is now against the land up to this date, June 10th, 1881.

"Witness our hand and seals.

"Sylvester Chambers. [Seal.]

"A. J. Hill. [Seal.]"

To which writing was attached a paper with an assignment thereon from Samuel Scraggs to Samuel Scraggs, Jr., with lines drawn across the same.

The plaintiff introduced Sylvester Chambers as a witness, and proved by him that he and Hill signed the said agreement; that, before the time said agreement was signed, he (Chambers) bad purchased a certain tract of land from one James II. Gray, which Gray had purchased from the plaintiff, Scraggs, and that A. J. Hill had also purchased from said Gray a tract of land which Gray had purchased from Scraggs; that Scraggs had not conveyed either of said tracts of land to Gray, and still held the legal title; that Scraggs represented there was three hundred dollars still due him on the tract of land sold by Gray to A. J. Hill and witness, and refused to make a deed to Hill until the purchase-money was secured; and that Scraggs then said there was enough timber on the land to pay for the balance of the purchase-money, and that the said agreement was executed by the parties thereto, and delivered to Scraggs; and that Scraggs then made to A. J. Hill a deed for the land; and that, between one and two years before that, witness and Scraggs had counted the trees on both tracts of land, and there were three hundred and fifty trees in all, big and little; but witness was not careful, and did know whether all the trees counted weremerchantable or not, and he thought they all were not good trees, but that the greater part were merchantable.

The plaintiff also offered himself as a witness, and proved that, on the day.the said agreement was executed, the said defendant and one Sylvester Chambers came to him to make a deed to Hill for the land Gray had traded to Hill, and that Gray then owed him three hundred and ninety four dollars and twenty five cents thereon, and that he refused to make it until his debt was paid or secured and that Hill and Chambers executed to him the said agreement, and that he then executed said deed to Hill; that, under this agreement, whatever amount was left on said purchasemoney after the timber McNeely got under his contract with Gray was credited thereon, and was to be paid by Chambers and Hill, Chambers paying twenty five dollars thereof, and Hill the balance; that said twenty five dollars had been paid, and that said Hill had not paid anything thereon; that he had no recollection of saying there was enough timber on the land to pay the debt, and knew nothing about the timber on the river one hundred acres, and had no recollection of saying that there was only three hundred dollars due on the land; that afterwards, on the 24th day of June, 1882, he, by a written assignment, attached to said contract, assigned the same to his son, Samuel Scraggs, Jr.; that afterward Samuel Scraggs, Jr., told plaintiff that he would not be annoyed with the contract, and he (witness) might attend to it, and could collect it if he wanted to; that this was before the institution of this suit; that said Samuel Scraggs, Jr., had not made any assignment of this contract back to him, but that he thought, as the land belonged to him, he should have the money.

The plaintiff also read in evidence the following agreement between James H. Gray and G. J. McNeely:

"This agreement made and entered into this, the 26th day of May, 1880, by and between J. H. Gray, of Kanawha county and State of West Virginia, party of the first part, and G. J. McNeely, of Boone county and State aforesaid, party of the second part, witnesseth that, for and upon the conditions hereinafter set forth, the said J. H. Gray, party of thefirst part, has this day bargained and soldto G. J.McNeely, party of the second part, all the poplar trees on the Sam Scraggs and Andrew Hill farms in Boone county; and the consideration of the above sale to said Gray of trees shall be one dollar per tree for timber on said Sam Scraggs farm, and one and one half dollars for timber so sold on Andrew Hill farm. The conditions of said sale are as follows, to wit: The said G. J. McNeely, agrees to take trees that are merchantable; and it is further agreed that said timber shall be paid for before removed from the bank of Little Coal river.

"In witness whereof, the parties have hereunto set their hands and seals, the day and date as aforementioned.

"James H. Gray. [Seal.]

"G. J. McNeely. [Seal.]

"Witness: J. W. Kennedy."

The plaintiff also proved by G. J. McNeely that he was the party to the said contract with J. H. Gray; that, under said contract, he had cut sixty merchantable trees off of the upper tract of land named in said contract, and eleven trees off of the lower tract or A. J. Hill tract, and these were all the merchantable trees on either of said tracts.

The defendant introduced several witnesses whose testimony tended to show that plaintiff had agreed to look to McNeely and the timber on the land for his debt; but as there seems to be some conflict in the testimony upon this point, and as the bill of exceptions fails to certify that it contains all of the facts proved or evidence offered, it is regarded as immaterial.

It appears that the court, in...

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