Stansbury v. Bright

• Decision Date: 18 November 1930
• Docket Number: 6561.
• Citation: 156 S.E. 62,109 W.Va. 651
• Parties: STANSBURY v. BRIGHT et al.
• Court: West Virginia Supreme Court

156 S.E. 62

109 W.Va. 651

STANSBURY v. BRIGHT et al.

No. 6561.

Supreme Court of Appeals of West Virginia.

November 18, 1930

Submitted November 12, 1930.

Syllabus by the Court.

Chancellor's fact findings will not be disturbed unless at variance with undisputed evidence or contrary to plain preponderance thereof.

In equity, the findings of fact of the trial chancellor will not be disturbed on appeal unless at variance with undisputed evidence or contrary to the plain preponderance of the whole evidence.

Bank cashier, without personal interest in bank, held not "party in interest" and competent to testify for principal against decedent's estate (Code, c. 130, § 23).

Although under section 23, c. 130, Code, a party in interest cannot testify for himself concerning transactions had by him with one who is dead, the cashier of a bank, who has no personal interest in it, but is merely its agent, may testify for his principal against a decedent's estate.

Appeal from Circuit Court, Raleigh County.

Suit by Herbert Stansbury against G. W. Bright and others. From an adverse decree, plaintiff appeals.

Affirmed.

Carl C Sanders and Clarence W. Meadows, both of Beckley, for appellant.

Dillon Mahan & Holt, of Fayetteville, for appellees.

WOODS J.

The principal object of this suit, so far as the present appeal is concerned, was to require the Bank of Mount Hope to account to plaintiff and the C. M. Lilly estate for certain usury alleged to have been charged on a loan to plaintiff and C. M. Lilly in the sum of $15,000, as evidenced by their joint promissory note; and for the face value of a $15,000 note of Williams-Combs Coal Company, as maker. This latter note, which was secured by a deed of trust, was placed with defendant bank as collateral. The plaintiff contended that the collateral note, now considered worthless, was on date of maturity collectable, and that defendant bank should be liable for its nonaction in regard thereto. The bank defends on the ground that C. M. Lilly, who was admittedly the agent of plaintiff in securing and renewing the loan from time to time, had requested it not to attempt to enforce collection of said collateral. It also denied that it had at any time demanded or accepted more than 6 per cent. interest. The court found for the bank on both issues of fact, and we are bound by that finding. Linger v. Watson, 108 W.Va. 180, 150 S.E. 525; Davis v. Davis Trust Co., 107 W.Va. 141, 147 S.E. 490; Kincaid v. Evans, 106 W.Va. 605, 146 S.E. 620; McBee v. Deusenberry, 99 W.Va. 176, 128 S.E. 378.

Plaintiff insists that the evidence of the vice president and the cashier of defendant bank to the effect that C. M. Lilly had requested that no attempt...