Walker v. Burgess

• Decision Date: 16 January 1930
• Citation: 151 S.E. 165
• Court: Virginia Supreme Court
• Parties: WALKER, MOSBY &. CALVERT, Inc. v. BURGESS.

151 S.E. 165

WALKER, MOSBY &. CALVERT, Inc.

v.BURGESS.

Supreme Court of Appeals of Virginia.

Jan. 16, 1930.

Error to Circuit Court, City of Lynchburg.

Proceeding by notice of motion by C. L. Burgess against Walker, Mosby & Calvert, Incorporated. Judgment for plaintiff, and defendant brings error. Reversed and rendered.

Aubrey E. Strode and Douglas A. Robertson, both of Lynchburg, for plaintiff in error.

Fred Harper, of Lynchburg, for defendant in error.

CAMPBELL, J. This is a proceeding by notice of motion brought by C. L. Burgess against Walker, Mosby & Calvert, Incorporated, to recover the sum of $2,255. The notice was as follows:

"Walker, Mosby and Calvert, Incorporated:

"Take notice that on Monday, December 27, 1927, I will move the Circuit Court of Lynch-burg, Virginia, for judgment against you for the sum of $2,255.00, with interest thereon from the first day of July, 1926, the said sum being due and payable to me by you for labor performed and material furnished by me, in and about the construction of three certain dwelling houses in Center View Square, in the City of Lynchburg, Virginia, under a certain contract therefor negotiated and entered into and executed as follows:

"1. Under date of September 30, 1925, you entered into a written contract with me with one J. W. Senseney, in words and figures as follows:

" 'Memorandum of Agreement, made this 30th day of September, 1925, between Walker, Mosby and Calvert, Incorporated, party of the first part, and J. W. Senseney, party of the second part: Witnesseth:

" 'That the parties of the first part hereby agree to furnish three lots in Center View Square for the sum of $2,300, 00. The value of the lot on the east corner of Memorial Avenue and Orchard Streets $S50, and the value of the two lots on Orchard Street is $750 each; and the parties of the first part further agree to furnish the cash capital to be used in the erection of three dwellings, one on each of the said three lots according to plans design No. 12743 A, design No. 12261 A, design No. 12208. The said party of the second part hereby agrees to furnish all material and labor and erect and complete said three dwellings at actual cost, and guarantee that the said three buildings shall not cost more than $10,500.

" 'It is mutually agreed between the parties to this agreement that the said three houses shall be sold by either party to this agreement, and that the party making the sale shall have the usual commission for making each sale. The entire cost of the said property, including cost of financing and cost of commission on sales shall be accurately kept and when all three buildings have been sold the net profits or losses shall be divided equally between the parties to this agreement as follows:

" '50% to J. W. Senseney and 50% to Walker, Mosby and Calvert, Incorporated.

" 'Walker, Mosby and Calvert, Inc., [Seal]

" 'By A. W. Mosby, Vice President.

" 'J. W. Senseney. [Seal]'

"2. By virtue of said contract you and the said J. W. Senseney became, and were made, partners in the construction and sale of the said three dwelling houses referred to in said contract.

"3. Sometime subsequent to the execution of the said contract of partnership, the said J. W. Senseney, acting for said partnership, entered into a contract with me, under which I was to furnish the labor and materials, for the plumbing and heating installations in said three dwelling houses, at the price of $2,825— $925 for said labor and materials furnished for the dwelling house that became No. 506 Orchard Street; $925 for the said labor and materials for the dwelling that became No. 510 Orchard Street; and $975 for said labor and materials for the house at the corner of Orchard Street and Memorial Avenue.

"At the time the said contract was entered into, the said J. W. Senseney advised me of the said contract between you and him and exhibited the same to me.

"4. Pursuant to the said contract, I completed the same on my part as to Nos. 506 and 510 Orchard Street, by completing the installation therein of the said plumbing and heating systems. And as of July 1, 1926, I had furnished labor and material in and about the plumbing and heating installation for the dwelling house on the corner of Orchard Street and Memorial Avenue, to the extent of $405 in value.

"5. About the time the said J. W. Senseney absconded from the City and State leaving numerous debts due creditors in the City unpaid, including a large debt due me.

"6. In August, 1926, the said J. W. Senseney was adjudicated an involuntary bankrupt, in the U. S. District Court for the Western District of Virginia; and his individual assets were administered in the said bankruptcy proceedings.

"7. In the said bankruptcy proceedings, I duly filed my claim against the said J. W. Senseney for his total indebtedness to me, including the amounts due under the contract relating to the said three dwelling houses. But in said formal proof of said claim I specifically set forth my advice and belief that you were a partner of said J. W. Senseney, in the construction of the said three dwelling houses, and that my filing of the said claim against him in said proceedings, as to the amounts due for labor and materials furnished by me in and about the installation of the plumbing and heating systems in said three dwelling houses, was without prejudice to my rights to assert those items of claims against you as a partner of the said J. W. Senseney.

"8. Subsequently to the adjudication of said Senseney as a bankrupt, A. W. Mosby, an officer, director and stockholder of Walker, Mosby and Calvert, Inc., paid me $570 for the completion of the installation of the. plumbing and heating system in said house at the corner of Orchard Street and Memorial Avenue leaving due me on that particular installation $405.

"9. The individual assets of the said J. W. Senseney administered in said bankruptcy proceedings were wholly inadequate to pay his individual debts proved therein, and I received as my distributive share of said as-sets the sum of $176.50, an amount that did not pay my claim against him as an individual, leaving my claim against the said partnership wholly unpaid.

"10. You have had continuous possession and control of the partnership assets of the said partnership from the beginning of said partnership; and you have held and sold the said assets, and have collected the said...