Crawford v. Bosworth, 72 W. Va. 543

Crawford v. Bosworth

72 W. Va. 543 | W. Va. | 1913

Lynch, Judge :

To enjoin the prosecution of an action at law against each of the four plaintiffs, to cancel, as fraudulent and without consideration, the agreement, dated May 16, 1903, out of which the causes of action arose, and to settle herein the entire litigation, are the objects sought by the plaintiffs.

Having overruled defendant’s demurrer, the circuit court, upon final hearing on answer and proof, and the report of the commissioner to whom the cause was referred to ascertain and report the debts due the defendant herein and plaintiff in the actions at law, entered a decree of recovery against the plaintiffs, and they appealed.

*544That failure of consideration in whole or in part, and fraud in the procurement of contracts, are available as defenses at law, is settled'by § 5, ch. 126, Code 1906, and Gall v. Bank, 50 W. Va. 597; Railroad Co. v. Railroad Co., 55 W. Va. 458, 460, 462; Connell v. Yost, 62 W. Va. 67; Mylius v. Massilon, 70 W. Va. 576; Armentrout v. Armentrout, 70 W. Va. 661. The facts of the Armentrout case, and the action of the court thereon, alone afford ample authority for the determination of this ease adversely to plaintiffs’ contention. Equity will not' interfere where there is adequate remedy at law. Even where there is concurrent jurisdiction, the tribunal “which first obtains possession of the subject must adjudicate, and neither party can be forced into another jurisdiction.”

Nor is there merit in the contention in this case that equity has cognizance to avoid multiplicity of suits. The liability of plaintiffs, if any, under the agreement of May 16, 1903, is several, not joint. Each is liable, if at all, only for commission on her share of the proceeds of sale. The defendant did not, in fact could not properly, sue thereon jointly. Nor can they jointly complain because of the several actions at law.

The defendant, under the principles announced in Armen-Iroul v. Armenlroui, supra, is not, under the pleadings, entitled to the relief granted by the decree of February 17, 1910.

The conclusion therefore is that the circuit court erred in its rulings upon defendant’s demurrer, and all the proceedings subsequent, thereto. The decrees of February 26, 1909, November 20, 1909, and February 17, 1910, will be reversed, the demurrer sustained, and the bill dismissed, without prejudice to the right of each of the plaintiffs to defend in the actions at law.

Reversed.