Wise v. Wise

• Court: West Virginia Supreme Court
• Writing for the Court: MILLER, J.
• Citation: Wise v. Wise, 101 W.Va. 186, 132 S.E. 369 (W. Va. 1926)
• Decision Date: 09 March 1926
• Docket Number: 5413.
• Parties: WISE v. WISE.

132 S.E. 369

101 W.Va. 186

WISE v. WISE.

No. 5413.

Supreme Court of Appeals of West Virginia.

March 9, 1926

Submitted March 2, 1926.

Syllabus by the Court.

Where the plaintiff has fully performed the contract on his part and nothing remains but a duty on the part of the defendant to pay money due the plaintiff thereunder, the plaintiff may recover under the common counts in assumpsit, and need not declare specially. In such case the action is founded on the implied undertaking, and the special contract, though in writing, is only evidence of that undertaking.

Where the defendant in consideration of money loaned him by the plaintiff, promises to pay to a third party, from whom the plaintiff borrows the money for that purpose, the principal sum with interest thereon until paid, plaintiff's cause of action does not accrue until after the defendant breaches his agreement, although plaintiff's note to such third party has been renewed in the meantime; and the defendant's failure and Refusal to Pay Interest on such note will constitute a breach of such agreement.

In such case plaintiff's right of action is not affected by the fact that he has not discharged his obligation to the third party.

Error to Circuit Court, Mineral County.

Action by H. L. Wise against J. W. Wise. Judgment of nil capiat on a directed verdict, and plaintiff brings error. Reversed verdict set aside, and a new trial awarded.

William MacDonald, of Keyser, for plaintiff in error.

Ernest A. See and Chas. N. Finnell, both of Keyser, for defendant in error.

MILLER J.

From a judgment of nil capiat on a directed verdict, plaintiff prosecutes the present writ of error.

The declaration contains only the common counts in assumpsit. Defendant pleaded the general issue and the statute of limitations. After plaintiff's case had been presented to the court and jury, the court sustained a motion to exclude the evidence, and directed a verdict for defendant, on the theory that the action was barred by the statute of limitations.

Plaintiff's testimony was to the effect that, in February, 1918, in closing up their partnership business, he and the defendant his brother, needed $2,500.00, which he borrowed from the First National Bank of Romney, securing his personal note by a deed of trust on his own property; that the defendant promised to repay to the bank the money so obtained and secured, with interest on the same until paid; that the defendant kept the interest paid for a time, and then failed and refused to make further payments to the bank; and that he had paid the interest from the time of defendant's refusal to do so. Plaintiff offered in evidence the following paper writing:

"Williamsport, W.Va. Feb. 8, 1918. For value received I hereby promise and bind myself to H. L. Wise that I will pay to First Nat. Bank of Romney, W.Va., $2500.00 and interest on same until paid for a deed of trust executed to said Bank for said amount, $2500.00 and interest for deed of trust by H. L. Wise and wife, bearing date of February 15th, 1918. (Signed) J. W. Wise."

The court permitted this writing to be read to the jury, but later, on motion of defendant's counsel, excluded all of plaintiff's testimony.

Defendant's counsel argue that plaintiff can not recover under the evidence because he failed to declare on the paper writing of February 8, 1918, relied on as evidence of the terms of the agreement between the parties.

"Where a plaintiff has done everything which has to be executed on his part, and nothing remains to be done but the performance of a duty on defendant's part to pay money due the plaintiff under the contract, the plaintiff may recover under the common counts in assumpsit, and need not declare specially, however special the contract which has been performed may have been. But in such cases the measure of damages is fixed by the special contract." Burks' Pleading and Practice (2d Ed.) § 73, p. 119, citing our cases of Jackson v. Hough, 18 S.E. 575, 38 W.Va. 390; Empire Coal & Coke Co. v. Hull Coal & Coke Co., 41 S.E. 917, 51 W.Va. 474; Lawson v. Williamson Coal & Coke Co., 57 S.E. 258, 61 W.Va. 669; Lord v. Henderson, 64 S.E. 134, 65 W.Va. 321; Bannister v. Victoria Coal & Coke Co., 61 S.E. 338, 63 W.Va. 502; and Mankin v. Jones, 69 S.E. 981, 68 W.Va. 422.

In such cases the action is not founded on the written instrument or special contract, but on the implied undertaking, and the writing is only evidence of that undertaking. Blair v. Wilson, 28 Grat. (69 Va.) 165; Burks, supra, p. 120. Our cases above cited fully answer defendant's contention as well as his objection to admitting in evidence the written contract of February 8, 1918.

The cashier of the First National Bank of Romney testified that on February 9, 1918, the bank loaned plaintiff the sum of $2,500.00, for which he gave his note, secured by a deed of trust on real property owned by him; that on November 1, 1918, the defendant paid interest on the note to February 9, 1919, in the sum of $150.00, and on May 1, 1919, interest for six months, amounting to $75.00; that on February 9, 1920, defendant paid $75.00 interest on a renewal of the original note, and again on August 5, 1920, $75.00 interest on the same renewal. It does not appear when the original note became due, but the testimony of the bank's cashier shows that $225.00 interest was paid on this note, which would extend the interest to about August 9, 1919.

The deed of trust provided that the conveyance was made, "in trust, nevertheless, to secure the payment of a note of even date herewith...