75 W. Va. 119 | W. Va. | 1914
This action in assumpsit is based upon an account .for merchandise alleged to haye been sold by plaintiff to Claytor
The affidavit for the attachment is defective in its statement of material facts. That statement is as follows: “Affi-ant further says that it has recently come to his knowledge and he believes his information to be true, that the said L. 0. Claytor, one of the defendants herein, and the responsible partner in said business, has proposed to one of his friends to convey to him and without consideration all real estate owned by him, situated in Fayette County, West Virginia, consisting of valuable lands and appurtenances, and that he believes the information which he has to be true.” Primarily all this is bad in not even purporting to state material facts positively, but only on information. Hudkins v. Haskins, 22 W. Va. 645; Sublett v. Wood, 76 Va. 318; Clowser v. Hall, 80 Va. 864. Then, the statement .does not bear out the grounds of attachment, that Claytor has converted his property, or a material part thereof, into money or securities, with intent to defraud his creditors, and that he has assigned or disposed of his property, or is about to do so, with such intent. It does not show that he has converted any of his property — turned any of it into money or securities. Nor does it show that he has actually assigned or disposed of any of his property. The statement merely says that Claytor proposed to dispose of his property on a single occasion. It does not say that the proposition was accepted by the friend to whom it was made. The facts do not suffice to show that Claytor is about to convert his property or to dispose of it. Will the friend accept the proposition mentioned? Is he so related to Claytor, or of such fraudulent inclination, as to be likely to do so ? Does Claytor continue in the intent
Plaintiff’s request to file a supplemental affidavit was refused. Affidavits for attachment may be supplemented in relation to the statement of the material facts relied on to show the existence of the grounds alleged. Code 1913. ch. 106, sec. 1. But all this is defined and limited by the statute. When a statement of material facts is objected to as insufficient, the affiant has the right within a time prescribed by the court “to file a supplemental affidavit, stating any other facts Avhich may have come to his knowledge since the filing of the original affidavit.” By the very language of the statute the new affidavit can only be supplemental, not corrective. It can only contain new facts, discovered subsequent to the filing of the original affidavit. The statute does not authorize the patching up of the original; it only authorizes the supplementing of the same by additional facts, not known when the former affidavit was made. Now, while plaintiff
On the trial the evidence adduced by plaintiff tended to establish that Claytor was a partner and that he was liable for the demand, jointly and severally with Jones, the other partner. No evidence was offered on behalf of defendants. The facts, circumstances, and admissions proved were sufficient to support the finding of the jury. The verdict was not contrary to the evidence. Then, what error, if any, committed to the prejudice of Claytor, warranted the court in setting aside the verdict as to him? Let us briefly notice the matters argued in this regard.
It is insisted on behalf of Claytor that the bill of particulars is insufficient, and that the court should have required the filing of a more definite one, as he demanded. We shall say little about this. The account filed is one in detail and is quite as full as is ordinarily required. Further, the demand for a more particular account came late, just at the calling of the ease for trial. There had been ample opportunity open to Claytor to find fault with the bill of particulars at an earlier time. From the record of the case as a whole, it is clear that no prejudice came to him because of the character of the bill of particulars to which he tardily objected.
A number of letters received by plaintiff through the mail, purporting on their face to have been written by Clay-tor to plaintiff in reference to the account, were admitted in evidence over Claytor’s objection. These letters, if authorized by Claytor, plainly tend to prove his liability. It came> out in the evidence, however, that only one of the letters is in his handwriting. Plaintiff offered no direct proof that the letters had been written by Claytor. They do not necessarily appear to be reply letters to those proved to have been written to Claytor by plaintiff. Yet they all clearly purport to be in relation to the account sued on. Some of them purport
Proper foundation was laid for the introduction of carbon copies of the letters which plaintiff had written to Claytor in reference to the account, and the court did not err in admitting those copies in evidence. Claytor was asked to produce the originals, but responded that he was unable to do so. It was sufficiently proved that the originals were written and put in due course of mail. It is certainly unnecessary to dilate on the presumption ivhich follows.
The bill of particulars contains items giving credit for notes executed to plaintiff by Claytor individually for portions of the account, and items charging back the notes with protest
Much has been said in the argument about the failure of plaintiff to prove the account. Objection is made that the original books of entry were not produced and the account properly proved from them. We need not discuss the proper course to be pursued in proving an account from the books of original entry. That question,- in the light of the evidence, is out of the case. Plaintiff proved admission on the part of defendants that the account was correct. Unccntroverted is the testimony that monthly -statements, embracing the whole of the account, including in proper places the crediting of the notes and the recharging of the same, were duly transmitted to Claytor, on behalf of the firm, according to its direction and custom, and that he retained them without a single objection. No objection wras made within such time as men would in reason ordinarily object under similar circumstances; in fact no'objection was ever made. Prima facie it was thus established that the account was correct. Defendants did not seek to overthrow the case so made. The principle applicable is an old' and firmly established one. Ruffner v. Hewitt, 7 W. Va. 586; Shrewsbury v. Tufts, 41 W. Va. 212; 1 Cyc. 375-378. Says Wigmore: “There has been a uniform rule, namely, that the failure to dispute an account rendered,
Prom the record the substantial justice of the case is that plaintiff should recover the amount of the account from Claytor and Jones, as partners. The ease was fairly tried, without error. Why the court should have set aside the verdict as to Claytor and rendered final judgment in his favor notwithstanding the verdict, we can not perceive. Wherein the judgment appealed from sustains the motion to quash the attachment, it will be affirmed; in other respects it will be reversed. and the judgment which the circuit court should have entered will be here entered. That judgment is that plaintiff recover of and from L. C. Claytor and J. M. Jones, partners trading and doing business under the style and firm name of J. M. Jones, the sum of four thousand and five dollars and twelve cents, with interest thereon from the 8th day of November, 1913, together with the costs incurred by plaintiff in the prosecution of its action.
Reversed and, Judgment Entered Here.