Tynes Et At v. Shore, No. 8308.

CourtSupreme Court of West Virginia
Writing for the CourtHATCHER, President
Citation185 S.E. 845
Decision Date28 April 1936
Docket NumberNo. 8308.
PartiesTYNES et at. v. SHORE.

185 S.E. 845

TYNES et at.
v.
SHORE.

No. 8308.

Supreme Court of Appeals of West Virginia.

April 28, 1936.


[185 S.E. 845]

Rehearing Denied June 18, 1936.

Syllabus by the Court.

1. Courts will not ordinarily decide a moot question.

2. The finding of the circuit court on conflicting oral testimony will not be disturbed unless clearly wrong or against preponderating evidence.

3. Whether or not the promise of a person to pay a debt for which he was theretofore not liable is within the statute of frauds, depends on intention. If he intended the promise to be collateral, it is within the statute; if original, it is not.

4. When it appears that a corporation is merely a simulacrum appropriated to the personal business of an individual, the corporate entity may be disregarded.

Appeal from Circuit Court, McDowell County.

Suit by L. A. Tynes and others against Jacob Shore. From an adverse decree, defendant appeals.

Affirmed.

I. Mann Litz and Capehart & Miller, all of Welch, for appellant.

M. D. Herzbrun, of Welch, for appellees.

HATCHER, President.

This is a suit with several ramifications, but for the central purpose of holding defendant, Jacob Shore, ultimately liable on obligations which he allegedly incurred while doing business under the name of Miners Motor Company, Inc. The circuit court found for plaintiff, L. A. Tynes, against the defendant.

In 1926, the motor company purchased from Tynes and his associates a certain leasehold, executing a deed of trust thereon to secure the unpaid balance of the purchase price. In 1931, defendant acquired all of the stock of the motor company except that of two nominal stockholders. He then assumed absolute control of its affairs. Legal corporate existence of the motor company thereafter does not definitely appear. In March, 1932, he and Tynes agreed on the amount remaining unpaid on the leasehold, and Shore delivered to Tynes two notes therefor, of $1,386.14 and $973.91, respectively, signed by the motor company. Those notes were payable in fourteen and ten monthly installments, respec-

[185 S.E. 846]

tively, and were secured by a supplemental deed of trust on the leasehold. There was default in the installments, and sale of the leasehold under the second deed of trust was advertised for February 15, 1933. Defendant personally negotiated with Tynes a postponement of the sale. As a result of the negotiation, Mannie Shore, a son of defendant, executed a contract with Tynes, which recited that Mannie had requested Tynes to postpone the sale, and in consideration of his doing so, Mannie agreed to pay all the taxes against the leasehold, to pay all the costs incident to the proposed trustee's sale, to pay Tynes all the rentals from the leasehold, to discharge a certain small judgment against the motor company, and to keep the buildings on the lease insured against fire. Some time after the sale was postponed, Tynes learned that the taxes on the leasehold for the year of 1930 had been delinquent; that in 1931, defendant had purchased the leasehold at the sheriff's sale for the delinquency, and in 1933 had secured a deed from the clerk therefor. This suit followed.

Defendant testified that he had sold his stock...

To continue reading

Request your trial
55 practice notes
  • Sturm v. City of St. Albans, No. 10569
    • United States
    • Supreme Court of West Virginia
    • November 24, 1953
    ...916; Shipper v. Downey, 119 W.Va. 591, 197 S.E. 355; Spradling v. Spradling, 118 W.Va. 308, 190 S.E. 537; Tynes v. Shore, 117 W.Va. 355, 185 S.E. 845; Cohen v. Smith, 114 W.Va. 813, 174 S.E. 521; Raleigh County Construction Company v. Amere Gas Utilities Company, 113 W.Va. 854, 169 S.E. 785......
  • Lieberman v. Lieberman, No. 10849
    • United States
    • Supreme Court of West Virginia
    • July 3, 1957
    ...916; Shipper v. Downey, 119 W.Va. 591, 197 S.E. 355; Spradling v. Spradling, 118 W.Va. 308, 190 S.E. 537; Tynes v. Shore, 117 W.Va. 355, 185 S.E. 845; First National Bank of South Charleston v. McCloud, 112 W.Va. 537, 165 S.E. 799; Robinson v. Robinson, 112 W.Va. 39, 163 S.E. 633; Linger v.......
  • Rohrbaugh v. Rohrbaugh, No. 10326
    • United States
    • Supreme Court of West Virginia
    • December 18, 1951
    ...916; Shipper v. Downey, 119 W.Va. 591, 197 S.E. 355; Spradling v. Spradling, 118 W.Va. 308, 190 S.E. 537; Tynes v. Shore, 117 W.Va. 355, 185 S.E. 845; Kincaid v. Evans, 106 W.Va. 605, 146 S.E. 620; Ramsey v. England, 85 W.Va. 101, 101 S.E. 73; Bailey v. Calfee, 49 W.Va. 630, 39 S.E. 642. Th......
  • Sanders v. Roselawn Memorial Gardens, Inc., No. 12662
    • United States
    • Supreme Court of West Virginia
    • February 27, 1968
    ...854; Southern Cooperative Foundry Co. v. Warlick Furniture Co., 117 W.Va. 336, 185 S.E. 773; Tynes v. Shore, 117 W.Va. 355, pt. 4 syl., 185 S.E. 845. For reasons stated, the judgment of the Circuit Court of Mercer County is affirmed in part and reversed in part; and the case is remanded to ......
  • Request a trial to view additional results
55 cases
  • Sturm v. City of St. Albans, No. 10569
    • United States
    • Supreme Court of West Virginia
    • November 24, 1953
    ...916; Shipper v. Downey, 119 W.Va. 591, 197 S.E. 355; Spradling v. Spradling, 118 W.Va. 308, 190 S.E. 537; Tynes v. Shore, 117 W.Va. 355, 185 S.E. 845; Cohen v. Smith, 114 W.Va. 813, 174 S.E. 521; Raleigh County Construction Company v. Amere Gas Utilities Company, 113 W.Va. 854, 169 S.E. 785......
  • Lieberman v. Lieberman, No. 10849
    • United States
    • Supreme Court of West Virginia
    • July 3, 1957
    ...916; Shipper v. Downey, 119 W.Va. 591, 197 S.E. 355; Spradling v. Spradling, 118 W.Va. 308, 190 S.E. 537; Tynes v. Shore, 117 W.Va. 355, 185 S.E. 845; First National Bank of South Charleston v. McCloud, 112 W.Va. 537, 165 S.E. 799; Robinson v. Robinson, 112 W.Va. 39, 163 S.E. 633; Linger v.......
  • Rohrbaugh v. Rohrbaugh, No. 10326
    • United States
    • Supreme Court of West Virginia
    • December 18, 1951
    ...916; Shipper v. Downey, 119 W.Va. 591, 197 S.E. 355; Spradling v. Spradling, 118 W.Va. 308, 190 S.E. 537; Tynes v. Shore, 117 W.Va. 355, 185 S.E. 845; Kincaid v. Evans, 106 W.Va. 605, 146 S.E. 620; Ramsey v. England, 85 W.Va. 101, 101 S.E. 73; Bailey v. Calfee, 49 W.Va. 630, 39 S.E. 642. Th......
  • Sanders v. Roselawn Memorial Gardens, Inc., No. 12662
    • United States
    • Supreme Court of West Virginia
    • February 27, 1968
    ...854; Southern Cooperative Foundry Co. v. Warlick Furniture Co., 117 W.Va. 336, 185 S.E. 773; Tynes v. Shore, 117 W.Va. 355, pt. 4 syl., 185 S.E. 845. For reasons stated, the judgment of the Circuit Court of Mercer County is affirmed in part and reversed in part; and the case is remanded to ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT