Vanbibber v. Beirne

• Decision Date: 22 February 1873
• Parties: VANBIBBER v. BEIRNE. ET ALS. MATHIAS VANBIBBER, PLAINTIFF AND APPELLEE, v. JOHN MCANEANY, & CO., BEIRNE, DUFFY, & CO., AND PATRICK BEIRNE, DEFENDANTS, AND SAID PATRICK BEIRNE, APPELLANT.
• Court: West Virginia Supreme Court

6 W.Va. 168

VANBIBBER v. BEIRNE. ET ALS.

MATHIAS VANBIBBER, PLAINTIFF AND APPELLEE, v. JOHN MCANEANY, & CO., BEIRNE, DUFFY, & CO., AND PATRICK BEIRNE, DEFENDANTS, AND SAID PATRICK BEIRNE, APPELLANT.

Supreme Court of West Virginia.

February 22, 1873

1. Every estoppel, because it concluded a man to allege the truth, must be certain to every intent, and not to be taken by argument or inference.

2. Where actual fraud is relied on, to authorize a recovery, the fraud should be clearly proven.

3. Every averment necessary to entitle a plaintiff to be entertained in a Court of equity must be contained in the bill.

4. The 35th section of chapter 125 of the Code of this State provides for the filing of a special replication, in a suit of equity, where defendant in his answer alleges new matter constituting a claim for affirmative relief: But this provision in this respect applies only when the answer sets up new matter, for which a cross bill might be filed, and does not change the general practice as to pleading in equity in other cases.

5. If it appear by the proper pleadings supported by proof that the facts on which the cause of action is founded were exclusively in the knowledge of the defendant; that he fraudulently concealed those facts; and that by such ways and means he defeated and obstructed the plaintiff from bringing his action within the time limited, the statute of limitations is answered.

6. To an answer setting up the statute of limitations, the plaintiff files his replication, alleging that he did bring and prosecute his suit in this behalf, within five years from the time of the defendant's liability to be sued, and notice to the plaintiff of the matter complained of in the bill. This replication will not avoid the statute of limitations.

On the 6th day of December, 1869, the Plaintiff exhibited his bill in the Circuit Court of Nicholas county against the Defendants, in which he alleged, that he loaned the late firm of John McAneany & Co., $100.00 on the 1st day of February, 1859, $250.00 on the 25th day of the same month and $300.00 on the 24th day of May, 1860, for which he took the three several notes of said firm; that on the 13th day of March, 1868, he brought suit on said notes against John McAneany, Philip Duffy, and Andrew Beirne, the partners of said firm, in the Circuit Court of Kanawha county; that at the June term, 1868, he recovered judgment thereon; that upon said judgment execution was issued and returned nulla bona; and that all the partners of said firm are insolvent and bankrupt. The bill then proceeds, " Before your orator thought of making these loans, although they had been urgently pressed upon him by said firm of John McAneany & Co., he was assured by Patrick Beirne, the father of said Andrew, that he had given his said son Andrew his entire interest in the firm of Beirne, Duffy & Co., in Nicholas county, and that the loan would be perfectly safe. This assurance was given with a view to induce said loans. Your orator knew the firm of Beirne, Duffy & Co., in Nicholas to be a wealthy, strong firm, and that the interest of said Patrick Beirne therein was worth a large sum, at least, as he supposed and yet supposes, $50,000.00. He, therefore, made the loans with full confidence in the ability of the said firm to repay him the said moneys; he, however, would not have made the loans without this direct assurance from said Patrick Beirne. He now charges that said Patrick Beirne either had not and has not given to his said son, Andrew, his interest in said firm of Beirne, Duffy & Co., which is the great reason, if not the entire reason, of the insolvency of the firm of John McAneany & Co., or that it was afterwards fraudulently cancelled with a view of defeating creditors, and he charges that the said Patrick Beirne ought to be and will be held liable to your orator for the loans aforesaid, at least to the extent of the interest of said Patrick Beirne in the effects of Beirne, Duffy and Co., which he believes to be ample, but which can be certainly ascertained by an account to be taken between the partners under a decree of this Court. The said firm of Beirne, Duffy & Co., was composed of Patrick Beirne, John Duffy and Philip Duffy. Your orator insists upon it that a Court of Equity will not permit the said Patrick Beirne to withhold his interest in the effects of said firm from your orator after the positive assurance given him that he had given the same to his said son." The bill then prays, that so much of the interest of Patrick Beirne in the said firm of Beirne Duffy & Co., as may be sufficient, may be applied to the payment of the Plaintiff's said debt; and for general relief.

At the May term, 1870, Patrick Beirne filed his answer to said bill, in which he positively denies that he ever told the Plaintiff that he had given to his son, Andrew, his interest in the firm of Beirne, Duffy & Co., or that he at any time ever made any statement to the Plaintiff with a view to induce him to loan money to said firm of John McAneany & Co., or that in fact he ever gave said interest to his said son. He avers that the cause of action set up by the Plaintiff in his bill (if it ever existed, which he positively denies,) accrued more than five years before the institution of this suit, and he pleads the statute of limitations in bar thereof. At the November term, 1870, the Plaintiff replied to said answer as follows: " And for special replication to the answer of Patrick Beirne, the Plaintiff saith that he did bring his suit in this behalf within five years from the time of said Defendant's liability to be sued, and notice to the Plaintiff that said Defendant, P. Beirne, had not transferred his interest in the firm of Beirne, Duffy & Co., in Nicholas county, to the Defendant, Andrew Beirne; and the other statements in said answer are denied." To this replication Patrick Beirne demurred.

Andrew Beirne also filed his answer setting up various payments upon the claim of the Plaintiff, and pleaded his discharge in bankruptcy. To this answer the Plaintiff filed both a general and special replication. None of the other Defendants answered and the bill was taken for confessed as to them.

The cause was referred to a commissioner to ascertain the amount of the Plaintiff's debt still due, and a number of depositions were taken on behalf of both the Plaintiff and the Defendant, Patrick Beirne. The substance and character of these depositions are sufficiently set forth in the opinion of the Court. And on the 9th day of November, 1871, the Court pronounced a personal decree against the Defendant, Patrick Beirne, for $759.98, with interest thereon from the 1st day of July, 1871, and the costs of the suit. From this decree Patrick Beirne appealed to this Court.

Snyder for Appellant.

The Plaintiff avers that before he made the said loans, " he was assured by Patrick Beirne" that he " had given his son, Andrew, his entire interest in the firm of Beirne, Duffy & Co., in Nicholas county, and that the loan would be perfectly safe." He also avers that he " would not have made the loans without this direct assurance from said P. Beirne." These are the only averments in the bill that tend to fix any liability upon Patrick Beirne, who is the Appellant in this Court; for the statement that " this assurance was given with a view to induce said loans," is simply a conclusion without any facts stated to warrant it, and, therefore, must be disregarded.-- Wright vs. Dame, 22 Pick. 55. The bill contains no charge of fraud, nor does it set out sufficient facts to constitute fraud, or estop the Appellant.--Herman on Estop. §331; and Debzelt vs. Odell, 3 Hill, 219; 6 Johns. 543.

In order to charge the Appellant, P. Beirne, there should be an averment that the Plaintiff stated his object for applying to him for information as to the solvency of his son, Andrew; he should have notified him that he was about to contract with Andrew, and that he wished to know whether or not he had given him his interest in the firm of Beirne, Duffy & Co., for that reason, otherwise Beirne might very naturally have regarded such an enquiry as impertinent, and not entitled to a serious reply.--Herman on Estop., §335; Eyre vs. Dunsford, 1 East, 318; Lang vs. Lee, 3 Rand. 410; Lord vs. Goddard, 13 How. 198; Russel vs. Clark, 7 Cranch 69. But are the allegations of the bill, in this case, sufficient to charge the Appellant? In general, the allegation of fraud is necessary.--Gouveneur vs. Elmendorf, 5 Johns. Chy. 79; Thompson vs Jackson, 3 Rand. 504; Booth vs. Booth, 3 Litt. 57. Though, where the facts are stated with distinctness and precision, an allegation of fraud, totidem verbis, is not required.--McCalmont vs. Rankin, 8 Hare, 1; Skine vs. Simmons, 11 Geo. 401.--The averments being insufficient, the bill should have been dismissed at the hearing for want of equity, although not demurred to.-- Lockard vs. Lockard, 16 Ala., 423; Hudson vs. Kline, 9 Grat. 379; Green vs. Massie, 21 Grat. 356.

But suppose everything is true that is stated by the Plaintiff still the case must be reversed. If the Appellant induced the Plaintiff to loan his money, by assuring him that he had given his interest in the firm of Beirne, Duffy & Co., in Nicholas, to his son, Andrew, and he loaned it on this assurance, the Court certainly can do no more than to compel the Appellant to make good this assurance and estop him from setting up a claim to said interest, to the prejudice of the Plaintiff.--Herman on Estop, §§252 and 324. If the Plaintiff loaned his money, as he says, " with full confidence in the ability of said firm to repay him," he should be satisfied when he has exhausted this fund upon which he relied with so much confidence, and not be permitted to resort...