74 W. Va. 686 | W. Va. | 1914
On the 1st of September, 1906, John W. Meadows and wife executed to R. B. Miller, one of the defendants, a mining lease for the term of fifty years, giving him the right to mine and ship fluorspar or onyx from a tract of 114 acres of land in Mercer county, West Virginia. The lease was acknowledged by Meadows and wife on the 3rd November, 1906, and recorded on the 3rd April, 1907. Endorsed on the lease are two purported assignments thereof, the first dated December 29, 1906, by R. B. Miller to J. M. Clark of Columbus, Ohio, and the second dated March 30, 1907, from said Clark to the plaintiff, a West Virginia corporation having its principal place of business in Columbus, Ohio, and .its chief works in Mercer county, West Virginia. Those assignments were not executed under seal and were not acknowledged by the assignors. The Columbus Onyx & Marble Company brought this suit in August, 1909, against said Miller and Clark praying that they be required to specifically perform their several contracts by executing proper assignments under seal. Miller is the only one who makes defense; Clark is a non-resident and was proceeded against by order of publication and has not appeared. Miller denies that he assigned the lease -to Clark, and avers that his name appearing to the assignment is not his signature, but a forgery, and that no consideration was paid to him for the alleged assignments. He avers that neither said Clark nor the plaintiff was ever in possession of the leasehold, but that he himself has been in possession of it ever since the demise to him. The answer is in the nature of a cross-bill, and avers that Clark fraudulently got possession of the deed of lease, and that he, C. T. Ensminger, E. L. Pollock, Ray Lovell, said Ensminger’s two sons, Homer Elliott, and others are attempting to swindle respondent out
We do not think the evidence supports the charge of forgery. The original lease, with the endorsements thereon, is before us with the record, and R. B. Miller’s name to the original Meadows lease, admittedly signed by him, resembles very much the handwriting of his name to the assignment. Miller had intrusted the paper to Clark and E. L. Pollock some days before the meeting in Columbus, Ohio, in December, 1906, and Miller was present at that meeting on the 29th December,. 1906, the date of the alleged assignment. The body of the assignment is written with a typewriter, and the names of Pollock and Clark both appeared as joint assignees, but a line was drawn through Pollock’s name with a pen. C. T. Ensminger, whose name appears as a witness to Miller’s signature, swears that Miller signed the paper in his presence, and. that he refused to sign it until Pollock’s name was erased. Raj»' Lovell testifies that he had received letters from- Miller, and that his signature to the letters corresponds to the handwriting of the signature to the assignment. J. M. Clark testifies that it is Miller’s signature; that he, Pollock and Miller had a conference together, at the Columbus meeting, and a good deal of controversy, and that Miller became somewhat out of humor and refused to turn over the lease until Pollock’s name was stricken out, which was done, and that Miller then signed the paper. . E. L. Pollock and Clark both-had a good deal of correspondence with Miller, and Pollock also swears that it is Miller’s signature. In addition to the . foregoing .testimony, Henry Meadows and Jonathan Meadows both testify to having heard Miller say that he had sold out to Clark. Miller testified that he did not sign the writing, but we think the foregoing evidence proves the fact that he did sign it.
But the assignment is not under seal, and the leasehold estate is for a term of fifty years. Consequently the writing did not operate to pass title to Clark. “No estate of inheritance or freehold, or for a term of more than five years, in
Respondent insists that the consideration agreed on was, that he was to be reimbursed certain expenses which he had already incurred, and was to be paid any additional expenses necessary to be incurred by him in the future, in making further explorations of the leasehold, and in quarrying and shipping samples of onyx to Columbus to Clark and Pollock who were to secure subscriptions to the capital stock of a corporation to be formed to take over and operate the property, and that he was to be paid $1,000 in cash and one-sixth of the capital stock of the corporation, which he says was to be capitalized at $150,000. We think his version of the agreement is borne out by the evidence. Negotiations began between him and Clark and Pollock early in the fall of 1906, for the exploitation of the property. . Respondent testifies that, about the 15th October, 1906, Clark and Pollock came to West Yirginia to see him, and that a written contract, or option for sixty days, embodying his claims as above stated, was then entered into; that this option expired and was renewed in practically the same terms, on the 25th December, 1906, in Columbus, Ohio; that he remained in Columbus until the 31st December, expecting them to pa.y him some money but they failed to do so; that they then owed him about $1,100; that after that time they paid him $200 at one time,
In view of respondent’s evidence, which we think is sufficient to prove that he has not been paid the agreed consideration for the leasehold, it would be inequitable to take from him the legal title. He can not be required to perform his part of the contract when it appears that Clark has not performed his part. Clark acquired, not the legal title, but only
It is insisted that respondent is estopped, by his conduct, to assert any claim to the property, that he kept silent when he should have spoken concerning his interest and that many of the stockholders in the plaintiff company were thereby misled to their prejudice in subscribing for its stock. The fraudulent conduct referred to has reference to a meeting in Columbus, on the 2nd March, 1907, of a number of persons
J. W. Meadows, the lessor, is now dead, and it is not claimed that there has ever been a forfeiture of respondent’s lease. But in order to get rid of his claim if possible, plaintiff induced Mr. Meadows, early in the year 1908, to execute another lease on the same property directly to it, changing somewhat the terms of rental from the original lease. Writing to Mr. Meadows on the subject of the new lease,' under date of January 21, 1908, Mr. Chas. E. Albright, then plaintiff’s secretary, says: “As to the lease, I had only one object in view, and that was to cut R. B. Miller absolutely out of all relation to you and to us. ” And, in a letter of 12th February, following, he again writes: “I am in receipt of your new lease to this company. Within a few weeks, I shall prepare a statement for your signature, to avoid the old one, and annul it completely, so as to eliminate Mr. Miller forever.”
We think it sufficiently appears from the record that plaintiff knew, through its officers and agents, all the time that respondent had an interest with Clark and Pollock in the leasehold, but, for some unexplained reason, wished to cut him off from any interest as a stockholder.
Respondent failed to make J. M. Clark a party defendant
The decree is reversed and a decree will be entered here dismissing plaintiff’s bill.
Reversed, and Bill Dismissed.