Simmons v. Looney
| Decision Date | 25 March 1896 |
| Citation | 24 S.E. 677,41 W.Va. 738 |
| Court | West Virginia Supreme Court |
| Parties | SIMMONS. v. LOONEY. |
Principal and Agent—Duties and Liabilities —Voluntary Payment.
1. If an agent sells his own and his principal's goods in common, and collects enough to pay his principal, but not enough to pay both, and, as an act of his own, indulges the purchaser, he must pay his principal, and cannot apportion what he has collected between himself and his principal.
2. If one under legal duty to ascertain, and with means to ascertain, a fact, pays money in ignorance of it, he cannot recover back.
(Syllabus by the Court.)
Error to circuit court, Roane county.
Action by G. B. Simmons against R. E. Looney. Judgment for defendant. Plaintiff brings error. Reversed.
Schilling & Starkey, for plaintiff in error.
J. W. C. Armstrong, for defendant in error.
BRANNON, J. A question has been raised whether there is any bill of exceptions, to enable us to review the case. There is a memorandum, made in term, at the close of the judgment, in the usual mode, stating that two bills were signed, sealed, and made, part of the record, and a bill of exceptions signed by the judge; but, after the signature, we find appended a memorandum, signed by the judge, certifying that the certificate of facts was not presented to him for signature until more than 30 days after the term. The court has concluded that the record of the case was made up and closed in term, and the bill then signed, as the record sets forth; and, as it is the legal rule that a record is evidence of what it states of so high order that it imports absolute verity, no averment or proof to the contrary will be received. State v. Vest, 21 W. Va. 796. No evidence of inferior dignity shall contradict it. We do not think the certificate of the judge made afterwards is part of the record, to affect the antecedent, finished, closed record in the case. 1 am of opinion that what a judge does, under the statute allowing 30 days for a bill of exceptions, in settling and signing a bill of exceptions, would be a part of the record, because done in pursuance of law, unlike the certificate of the judge in Sweeney v. Baker, 13 W. Va. 159, which no law authorized him to make; but in this case the prior order in term asserts that the bill of exceptions was then signed. Which shall we take as stating the fact truly? I mean in a legal point of view; not that we have doubt of the truth of the fact stated by the judge in said subsequent memorandum. One states the signing of the bill as done at one time; the other, at another. We conclude that we cannot overthrow the statement of the record proper with this subsequent memorandum. If that record had not shown a perfected bill of exceptions, and the record made up, then any certificate of the judge touching the matter would be evidence.
We will now consider the case. It was an action of assumpsit by Simmons against Looney. Looney had a contract for furnishing timber to a lumber company, and the plaintiff had a like contract with the same company; and, as the price which Looney got for lumber was better than that of Simmons, an agreement was made between them by which Simmons was to put in his timber on Looney's contract with the company, the timber to be taken up by the company in the name of Looney, and Looney to collect the money therefor, and pay it over to Simmons as soon as collected, Looney to be paid his expenses only, and nothing more. The timber was to be paid for by the company when taken up, but, as the report would have to be sent to the company, it was expected that the money would not be realized for some 30 days after the lumber was taken up. Simmons furnished some timber to the company, Looney some, —in all, $2,800, of which Looney had collected $1,500. The timber delivered by Simmons was taken up in parcels at different times, amounting to $768.73. Looney paid Simmons money at different times, but not enough to pay for all the timber furnishedby Simmons. A balance remained uncollected from the lumber company. Simmons sued Looney, claiming pay for all the timber furnished by him, and a store account and due-bill against Looney. Looney did not controvert the timber account or the store account or the duebill, so far as amounts went. There is no dispute as to facts. Looney, on the witness stand, stated that he had paid Simmons $300 more than his proportionate part of what he had collected from the lumber company. The jury found a verdict for Looney for $246.25, on which judgment was rendered against Simmons, and Simmons brings the case here.
The record discloses no ground to warrant this verdict save the theory that out of the $1,500 collected by Looney he was not bound to pay Simmons for his lumber in full, though collected more than 30 days after the delivery of the lumber, but he might apportion it between himself and Simmons according to this quantity of timber furnished by each; and that, for the balance, Simmons must wait until collection of the money yet due from the lumber company; and that on this theory Looney had the right to recover back from Simmons what he had paid him over his ratable portion. Let us inquire whether Looney had the right to recover back from Simmons such overpayment. Looney says he paid it under mistake, because he did not know how much timber Simmons had put in. Taking it, for the sake of argument, true that, when he pai...
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