SMITH v. TOWNSEND.

• Decision Date: 14 April 1883
• Citation: 21 W.Va. 486
• Court: West Virginia Supreme Court
• Parties: SMITH v. TOWNSEND.

21 W.Va. 486

SMITH

v.TOWNSEND.

Supreme Court of Appeals of West Virginia.

Submitted June 20, 1882

Decided April 14, 1883.

1. A plea of nil debet in an action of indebitatus assumpsit is cured by a verdict and will be treated in the Appellate Court, as if it had been a plea of nonassumpsit. (p. 495.)

2. If no account of payments is riled with a plea of payment, under $ 4ch. 126 of Code of W. Va. no proof can be given by the defendant of any partial payments; but if without objection on the part of the plaintiff the defendant docs prove such partial payments, the jury may properly consider such proof and base their verdict upon it. (p. 495.)

3. A simple statement of the facts in a case, though signed by the judge, is no part of the record, if not made so by an entry on the record-book or by its being incorporated in and in some manner made part of a bill of exceptions, which is made a part of the record by an entry on the record-book. (p. 493.)

4. An appellate court can not set aside a verdict and award a new triaL, which the court below refused, if there be in the case sufficient evidence to justify the verdict alter rejecting all parol evidence in conflict with such evidence, and which was offered by the party, against whom the verdict was rendered, (p. 494.)

Writ of error and supersedeas to a judgment of the circuit court of the county of Pleasants, rendered on the 26th day ot November, 1879, on a supersedeas to a judgment of the county court of said county, wherein C. p Smith was plaintiff in error and J. B. Townsend was defendant in error, alknved upon the petition ot said Townsend.

Hon. James M. Jackson, judge of the fifth judicial circuit, rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case:

On August 2, 1879, C. P. Smith brought his action of assumpsit against J. P. Townsend in the county court of Pleasants. The controversy had its origin in the following transactions:" The plaintiff, 0. P. Smith, had placed in the bands ot the defendant, J. B. Townsend, an attorney-at-law, tor collection a bond of Oliver Gorrell and two others, sureties, payable to the plaintiff. The bond was for seven hundred and seventy-five dollars and bore interest from 27th of May, 1872. Townsend brought suit on it in the name of Smith and obtained a judgment for the full amount, Execution was issued on it, and a forthcoming bond was given, which was for some reason not stated in the record quashed by the court; and the costs attending this were nine dollars and twenty cents, which were paid by Townsend for the plaintiff against whom was the judgment for costs. Another execution was issued on this judgment; and Gorrell obtained an injunction enjoining the enforcement thereof. It does not appear, what were the allegations of the bill of injunction in other respects, but it claimed an offset due from Smith to Gorrell of sixty-four dollars and thirty-eight cents. It does not appear, when this offset became due, or from what time it bore interest properly, or its character.

On June 16, 1876, Gorrell and Smith entered into a written agreement as a compromise of their difficulties. By this compromise this offset of sixty-four dollars and thirty-eight cents was allowed and directed to be credited on Smith's judgment against Gorrell; and Gorrell agreed to abandon all other defenses and objections set up in his bill of injunction, and-to pay all the costs of the injunction suit except the fee taxable to Smith's attorney, and to pay to Smith then, which he did, twenty-five dollars on his judgment; and Smith agreed to stay executions tor the balance till May 1, 1877. Townsend subsequently collected the balance of this claim of Gorrell; and in so doing he credited this claim by Gorrell's offset of sixty-four dollars and thirty-eight cents as of May 27, 1872, which was the date of Gorrell's bond to Smith.

On the 8th day of July, 1878, Townsend made out tor Smith a written statement of these transactions including in it a credit of three hundred dollars cash paid to Smith by Townsend, "C. P. Smith.) vs. V Oliver Gorrell. and others. J

Debt.................................................................... $775 00-100

Interest from 27th May, 1872, to 8th July, 1878..... 280 42

Debt and interest......................................... $1055 42

credits.

Account equal with note..................................$ 64 38

Equal interest of note.......................................... 23 50

Injunction attorney fee paid you........................ 25 00

Interest 16 June, 1876, to 8 July, 1878................... 3 91

Cash paid you by me........................................... 300 00

Interest 8th Feb. to 8 July, 1877........................... 7 50

Commission on entire debt.................................. 21 10

Injunction attorney fee, "open'\......................... 25 00

Costs in quashing f. c. bond................................. 9 20

Order to you from O. Gorrell............................... 1 59

Charges on check paid Morgan, cl'k..................... 25

--$ 481 43

$573 99"

This statement was not, however, delivered to Smith then, but on August 1, 1878, when they finally settled. By it there was a balance due from Townsend to Smith of live hundred and seventy-three dollars and ninety-nine cents, which Townsend paid to him in cash oil August 1, 1878, delivering to him at the same time the above statement and taking from him a receipt in full. The commission charged in this statement was 2per cent., the amount which Townsend had agreed to charge, when this claim against Gorrell wras placed in his hands for collection and Townsend says, that Smith examined this statement and said, it was all right, and after he had examined, signed the receipt in full; that the receipt was also read to him before be signed it; that he Townsend told Smith, he charged him twenty-five dollars for defending the chancery suit, to which he did not object, and Smith likewise told him to charge to him, Smith, the nine dollars and twenty cents costs, which Townsend paid for him, when the forthcoming bond was quashed by the court. These items appeared among the credits in this statement furnished by Townsend to Smith, When this settle- ment was made Townsend took up from Smith the receipt which he had given him for the collection of this bond of Gorrell and others.

Smith says, he did not read this statement made out by Townsend, but simply asked if it was all right, and Townsend said it was all right, and presented the receipt, which he signed on Townsend saying, that, if there was anything wrong, he would make it right. He took this statement borne and, when he had examined it, concluded he was wronged by it. But Townsend would make none of the corrections, which he demanded, except that on April 23, 1879, he paid Smith's wife for him three dollars and eighty cents, error in calculation of interest. And in the following August he brought tbis suit.

The declaration, after it had been demurred to, was amended, and in its amended form states, that the defendant, Townsend, was indebted in 1878 to the plaintiff, Smith, in the sum of one thousand dollars, collected from Oliver Gorrell and his sureties for this plaintiff, and in a like sum for money had and received by the defendant for the use of the plaintiff, and for the like sum on money found due from the defendant to the plaintiff on an account stated, which seems he promised to pay less two per cent tor the collection, yet he has refused to except three hundred dollars paid February 8, 1878, also rive hundred and seventy-three dollars and ninety-nine cents paid July 8, 1878, and three dollars and eighty-six cents paid as of like date, making in all eight hundred and seventy-seven dollars and seventy-five cents, leaving a balance due the plaintiff of one hundred and twenty-two dollars and twenty-five cents to the plaintiff's damage, one thousand dollars.?so bill of particulars was filed with this declaration.

A plea in abatement was filed and demurred to, and the demurrer was sustained. The order-book of the next term has on it this entry in this case:" And thereupon the defendant for plea saith, he does not owe and has well and truly paid the debt in the declaration mentioned, and he filed a plea in writing of accord and satisfaction." This written plea states, that the plaintiff's demand has been fully paid off and discharged by payments made to the plaintiff on August 1, 1878, and on April 23, 1879, amounting in the aggregate to one thousand and fifty-nine dollars and twentyeight cents, which were received by the plaintiff in full satisfaction of the debt, interest and costs in the declaration mentioned. And for a further plea lie said, he had paid the debt by accord and satisfaction and by payment in full and receipts taken by him, the defendant, in full of the plaintiff's demand. To all these pleas general replications were filed and isbue joined on them. No bill of particulars or account of payments was tiled by the defendant with any of his pleas.

The jury was sw^orn to try these issues, and on September 16, 1879, found a verdict for the defendant; A new trial was asked for, because the verdict was contrary to the evidence; and on the 19th ot September, 1879, it was refused, and judgment was entered in favor ot the defendant against the plaintiff tor his costs. A bill of exceptions was taken to this action of the court, in which bill ot exceptions, it is claimed, the court certified all the facts proven before the jury. It also signed and made a part of the record another bill of exceptions of the plaintiff for permitting testimony, which he deemed improper, to go to tbe jury. The facts proven at the trial, if we can regard them as a part of the record, were all those, which, we have stated, constituted the transaction, out of which this controversy arose. No witnesses were examined except the plaintiff and the defendant: and their testimony lias already been...