61 W. Va. 477 | W. Va. | 1907
This is an appeal from and supersedeas to a decree of the circuit court of Gilmer county, prosecuted by John Messenger and the Stewart’s Creek Coal Company, the decree being entered in a cause in which E. D. .Fulton was plaintiff and John Messenger and others were defendants.
On the 30th day of January, 1902, Fulton tendered to Messenger a check for the cash payment and note to secure the deferred payment on the property, and upon Messenger's refusal to accept same, suit was brought to compel specific performance of the agreement. Later an amended bill was filed, in which the conveyance by Messenger to Stewart's Creek Coal Company was set up, and the deed asked to be canceled. Upon a final hearing, before a special judge, the plaintiff was decreed the relief prayed for. At a subsequent term, a motion was made to set aside this decree, on the ground that the special judge was not properly selected, and also that the cause had been submitted and decided in the absence of counsel for the defendants, which motion was overruled, and the cause is now here for review.
The appellants assign many reasons why the decree of the circuit court should be reversed and the plaintiff denied relief, but in dealing with them we come first to the consideration of the demurrer to the original and amended bills, the disposition of which determines the vital question upon which this litigation hinges, and that question is, does the optional contract, the assignment thereof by Barnett to Crennell, the written notice of acceptance thereof by Crennell, and the requirement by him of Messenger to execute the deed, and the written acceptance, of the notice and the agreement endorsed thereon signed by Messenger, constitute a binding executory contract of sale, which can be enforced by Fulton,the assignee of Crennell. There is no difficulty in determining that the option given by Messenger to Barnett to purchase within a certain time at a stipulated sum, is a binding and enforceable contract. It is not an executory contract for the sale of the coal, but it is an executed contract, giving the right to the optionee, by his complying with its provisions within a limited time, to convert it into a valid and binding execu-tory contract. When the optionee has fully complied with its provisions within the time limited, it then becomes an en
The optionee or his assignee had until the 21st day of July, 1901, within which to require Messenger to convey the property, and deposit the deed of conveyance in the Gilmer County Bank, which was, by the express terms of the contract, to be delivered to the vendee upon his compliance with his part of the agreement by depositing to the credit of Messenger the cash payment and interest bearing notes for the deferred installments of purchase money. It does not appear that the cash payment and notes were so deposited within that time, but Wm. Crennell, to whom the option had been assigned, gave to Messenger the notice of acceptance herein-before set out, from which it will be observed that Crennell obligated himself to carry out and perform, as assignee of Barnett, the optional agreement, by paying the money and making the notes, and in the same writing Messenger was required to make the deed. Upon Messenger receiving this notice, by an express provision of the contract or option, it became his duty to make the deed and deposit it in said bank, to be delivered to the optionee or his assigns, upon his complying with his part of the contract. The contract made it' the duty of Barnett to require a deed a sufficient time before the 21st of July, 1901, for the optionor to make the same and deposit it by that date, so that the cash payment and the notes could be deposited, and the sale consummated within the six months,.because the contract expressly provides that un
- The appellants contend that by the allegations of the plaintiff’s bill he bases his right to recover solely upon the original option, with its assignment and notice of acceptance. The bill sets up the option, the assignment, the notice of acceptance by Crennell, the assignee; and the acceptance and agreement of Messenger, and asks for. the enforcement of the
It is insisted that an option is not assignable, and Dyer v. Duffy, 39 W. Va. 148, and Rease v. Kittle, supra, are cited in support of this proposition. Neither of these cases are analogous to the case at bar. The contracts there involved did not provide for an assignment, while the contract under consideration expressly provides for a sale and conveyance to Barnett or his assignee. In Reuse v. Kittle, supra, it was held that where an offer is made to a particular person, and not to a party and his assigns, it could be accepted and enforced by the optionee alone, but this Court did not hold that where an option is made to one and his assigns that it is not assignable, but this question was expressly left open. In Dyer v. Duffy, supra, the contract was limited to a single person, and not to the party and his assigns. Therefore, neither of these cases can be applied here. An optional contract, giving the right to purchase property within a certain time, and upon certain conditions, is often a valuable right, but under the authorities above cited, it is a personal privilege, limited to the optionee, where there is no provision for its assignment. But where the parties have expressly stipulated for an assignment, it is difficult indeed to find a reason why this may not be done. It cannot be longer said to be personal to the optionee, because by the express terms of the contract, the optionor has agreed to sell and convey to the op-tionee or his assigns. Kerr v. Day, 14 Pa. St. 112; Napier v. Darlington, 70 Pa. St. 64; Bank v. Haumeister, 87 Ky. 6; Laflin v. Naglee, 9 Cal. 662; 70 Am. Dec. 678; House v. Jackson, 24 Ore. 89; Sutherland v. Parkins, 57 Ill. 338.
Where an option is given to one and his assignees, wé think the correct rule is that it is assignable. But were the rule otherwise, in this case the option not only provides that the conveyance shall be made to Barnett and his assigns, but after the assignment to Crennell and upon Crennell’s giving notice to Messenger that he would accept the option and be bound by its terms, Messenger assented to the assignment
There is some contention that Messenger could neither read nor write, and that the endorsement or agreement signed by him upon the notice of acceptance of the option was incorrectly read to him and that he did not understand it. He does not deny having had his daughter to sign his name to it, but says he did not understand it to be as it appears. The evidence utterly fails to show that it was not correctly read to him, and if he did not understand it, he should have informed himself before signing it. His daughter was present and signed his name for him and at his request, but he did not ask her to explain or read it to him; in fact, he says she did not read it. It is the duty of one signing a contract or paper to ascertain its true meaning and purport, and to understand its contents before doing so. If he does not,' he cannot bo relieved against it, where he has not been misled or induced to sign it by fraud. “If one sign a written contract without acquainting himself with its contents, he is estopped by his own negligence from asking relief against its obligation, if his signature is procured without fraud.” Ferrell v. Ferrell, 53 W. Va. 515.
The action of the court in not sustaining exceptions to the depositions is assigned as error. A sufficient answer to this assignment is that there is nothing to show that the excep
Complaint is made that the special judge who presided and entered the decree complained of, was not selected in the manner provided by law, but that he was selected and the cause submitted to him without notice to the appellants or their attorneys, and without their knowledge. The record shows that the regular judge of the court being absent and-failing to attend and hold the term, and it not having been completed, the clerk of the court held an election for -the purpose of electing a special judge, and that all the attorneys present and practicing in the court having voted by ballot, the clerk declared that Robert L. Bland, an attorney practicing in this state, had been duly elected to hold the term in the absence of the regular judge, and that he thereupon appeared in open court and took the several oaths prescribed by law.
The election seems to have been held in conformity to section 11 of chapter 112 of the Code, 1899, section 3630, Ann. Code, 1906. This section provides that when for any cause tjbe judge of a circuit court shall fail to attend and hold the same, either at the commencement of the term or at any time before its adjournment, or if he be in attendance and cannot properly preside at the trial of any cause therein, the attorneys present and practicing in said court may elect a judge by ballot to hold the term during the absence or for the trial of the cause in which the regular judge cannot preside, but where the regular judge is in attendance, no such election can be held until the same, be directed by him by his order
It is true that the order showing the election of the special judge was brought into the record by the subsequent proceeding instituted for the purpose of setting aside the decree complained of, but we fail to see how this can alter the situation, because the record up to this time failed to show that the same had been entered by a special judge. Therefore, in the absence of the order showing his election, the record appears to be perfectly regular, and when we look to the order showing his election, it shows that he was elected on the 8th day of October, to hold the term, and that the decree appealed from was entered on the 10th day of October, following. This order showing his election is a part of the record, and whether made so by the subsequent proceeding or not is immaterial.
The appellants challenge the regularity of the election, and
The appellants say that N. T. Arnold and B. F. Kidd should have been made parties to the .suit. Ordinarily, in a suit for the specific performance of a contract, the only parties necessary to the suit are the parties-to the contract. Willard v. Tayloe, 8 Wall. 557. It is difficult to see how the defendants can complain because Kidd and Arnold were not made parties. This suit is prosecuted by Fulton, the as-signee of the contract, Orennell having assigned it to him for a valuable consideration. If Fulton should have an understanding or arrangement with others by which they are to be interested in the property, it is not clear upon what ground the defendants can complain of such other persons not being parties to the proceeding. There is no controversy between Fulton and those who are now said to be interested in this property with him. Messenger cannot be again called upon to perform the contract. The decree calling for performance concludes the matter as to him. Then, again, at the time of the decree complained of, there was nothing in the record to show, even if it does now show, that Kidd and Arnold had any interest in the suit, but this matter has been brought into the record upon.the notice given to set aside the final decree, and which will be hereinafter referred to, and shown not to be a part of the record. The correctness of the decree must be tested by the record as it was at the time it was pronounced, and if the record did not then disclose the absence of necessary parties, it cannot thereafter be made to so appear.
The remaining question to be disposed of is the action of the circuit court in refusing to set aside the final decree and grant a rehearing. The appellants gave the plaintiff notice that they would move to have the decree set aside and a rehearing granted, because of certain alleged irregularities in the proceedings, the main one relied upon being that the cause was submitted for hearing by the plaintiff’s attorneys
Upon this motion affidavits were filed and evidence taken, and upon a hearing the court declined and refused to set aside the decree. In a suit in equity, where there has not been a final decree, a petition to rehear may be entertained, or where the decree is final a bill of review may be filed, or an original bill may be filed to impeach a decree. But our chancery practice does not authorize such proceeding as is here instituted for the purpose of setting aside this decree. It should be done, if at all, upon a bill or petition filed for that purpose, containing proper allegations. Under section 5 of chapter 134, Code 1899, section 4036 Ann. Code 1906, where a bill is taken for confessed, a motion to reverse or correct the decree must be made in the court entering the decree. But that is not so in this case, as the decree complained of was not upon bill taken for confessed. The decree was pronounced upon the original and amended bills, answer of the defendants and depositions of witnesses.
The defendant, Stewart’s Creek Coal Company, being purchaser with actual notice, the deed from Messenger to it was properly canceled and set aside.
We see no error in the decree appealed from, and it is affirmed.
Affirmed.