57 W. Va. 74 | W. Va. | 1905
This is an action of an&ntmpsit brought in the circuit court of Ritchie county by L. P, Giboney against S. J. Cooper and Hugh Cooper, late partners* as Cooper & Cooper. The declaration contains only the common counts, and plaintiff hied with his declaration an account as follows:
Goose Creek, W. Ya., Nov. 27, 1902.
S. J. Cooper & Cooper to L. P. Giboney, Dr
To note dated July 22, 1901.:.$300.00'
To interest to Nov. 27, 1902. 1.80
To protest charges and protest. 1.10
$302.90
accompanied by an affidavit as required by statute. The writ was served only upon the defendant Hugh Cooper, and
‘ ‘$300.00. Cairo, W. Ya., July 22,1902. Ninety days after date for value received, we promise to pay to the order of L. P. Giboney, Three Hundred Dollars negotiable and payable at The Bank of Cairo, Cairo, W. Va. $. 0- Cooper & Cooper. Former No.Postoffice-. (Stamped across the face of note:) Protested October 20, 1902. Geo. H. Carver, Notary Public. (Endorsed on back of note:) L. P. Giboney.” The certificate of protest as introduced, shows the note to be signed with no marks through the letters “S J” before Cooper and Cooper. After the admission of the certificate of protest, the court gave the following oral instruction to the jury: “Gentlemen of the jury, you are instructed that if you believe from the evidence in this case that at the time the note was delivered by the maker it was signed merely in the firm name of Cooper & Cooper, then you will find for the plaintiff in this case the amount of the note in controversy; however, if you should believe from the evidence that at the time it was delivered it was not so signed, but that the letters S. J. were on the note and were not erased or marked out, then you should find for the defendant in this case,” to which instruction counsel for plaintiff objected and excepted. The note was introduced in connection with the oral testimony of L. C. Giboney, who acted for the plaintiff, his son L. P. Giboney, in selling and delivering to the defendants, or S. J. Cooper, the wagon, horses and outfit for which the note was given. The only question in the case is really whether S. J. Cooper purchased the property on his individual account with the knowledge of that fact of said Gib-oney, or whether he purchased it for the firm of Hugh Cooper and S. J. Cooper, who were engaged in the saw mill business. L. C. Giboney was asked whether he knew under*78 Avhat name and where the defendants were doing business. He stated that Hugh Cooper and Sam Cooper were doing business on Nutter’s Fork in the firm name of Cooper & Cooper, in the saw mill business, and was asked if he had business with them as the firm of Cooper and Cooper. A. “Not until I delivered the horses to them.” He was then shown the note in question and asked “Who made that note?” A. “My son drew the note up — L. P. Griboney.” “Who signed it?” A. “Sam Cooper.” “Where did he sign it?” A. “In a grocery that Mr. Cooper, Sam Cooper, was running,” and stated that by Sam Cooper he meant S. J. Cooper. He was told to look at the signature of the note and explain, if he could, how the “S. J.” came to be crossed out. A. “Well he set down to the counter and put it S. J. - Cooper. Sajrs I, ‘Mr. Cooper, now is this the way you sign all your paper?’ ‘We do,’he says, ‘we sign all our papers in this way. ’ And I felt kind of doubtful about it; and this Mr. Cooper’s wife (pointing to Mr. Cooper who was present) set right there (indicating,) and I set right there, and Mr. Cooper set right there, indicating respective positions to each other, and I parleyed a good bit in my mind whether to take the note and leave the horses, or to take the horses, and he told me so positively that was the waj^ they signed their papers; and he said to me, ‘We have part of the monej'- in the Cairo Bank now, but we don’t want to draw all our means out, ’ then I took the note. Q. What was the consideration for that note? A. Three hundred dollars. Q. What did you give for that? A. A pair of horses, wagon, harness and outfit, chains and everything. Q. To whom did you sell the wagon, harness, &c? A. Sam Cooper, I knowed him by that name; that is the man who came and contracted for the team. Q. For what purpose? A. To' log the mill. Q. Do you mean the saw mill of Cooper & Cooper? A. Yes sir. Q. Where? A. Right there at the mill. Q. But at the time of making the note you would not accept his individual note? A. No sir, but when he signed it Cooper & Cooper — lie first signed it S. J. Cooper, and when I didn’t want to take it, he put & Cooper on it. This Cooper’s wife never said pro or con, and the note laid there a good bit, and I thought she couldn’t help hearing what was said about this note and she never gave any objections; but this Mr. Cooper didn’t seem*79 to be there, and I asked Mr. Sam Cooper where he was, and he told me, but I don’t recollect where he said he was. And I asked him very positively if that was the way they signed their paper, and he said they signed all their paper that way.
Question by Robinson: Which way do .you mean, S. J. Cooper, or Cooper & Cooper? A. You see he only wrote S. J. Cooper, and then he put & Cooper and I objected to it. Q. Now, Mr. G-iboney, when that note was signed under .your objection, what, if anything, was done to the letters S. J. ? Just look at the note ? A. They were cancelled across.
Q. Did you see them crossed? A. I seen S. J. Cooper— I didn’t see this one crossed (meaning the second letter,) but I did see this one. I took notice to that, and something called my attention and I turned my head, and when he handed me the note the S. J. was cancelled. Q. Did .you pay the note when it was protested, — take it up out of the bank? A. No, sir; I didn’t, my son did. Q.- What is your son’s name? A. L. P. Griboney. Q. He is the plaintiff in this suit? A. Yes sir.”
There was a good deal of conflicting evidence about the erasure of the letters “S. J.” as to whether it was done before or after it was negotiated and paid, or at the time it was made, and it seems to me this is not material. S. J. Cooper and W. H. Cooper were brothers doing business together as Cooper & Cooper in the saw mill business, and according to the evidence of Hugh Cooper, himself, S. J. Cooper was the most active member of the firm. He says that he and S. J. Cooper were members of the firm,- and when asked “was there any limited powers upon either one of you as to the right to. sign papers?” A. I believe not. Q. One had as much power as the other? A. Nothing was ever said about that as I know of. Q. You have the saw mill over there have you not? A. Yes, sir. Q. That belonged to the firm of Cooper & Cooper? A. Yes Sir. Q. You ran a bank account in the Bank of Cairo? A. Yes, sir; the business was all done in the name of Cooper & Cooper. Q. Who signed the checks? A. I done some of it. Q. Did S. J. Cooper ever do any of it? A. He has, I believe. Q. Any body else? A. Yes, my son Will. Q. You can not say that S. J. Cooper at the time had not the right to sign the name of Cooper & Cooper to that note? A. As a member of the firm
The firm was carrying on the saw mill business, and the purchasing of this team was in the line of their business— “for logging the mill” and the team was used for that purpose' as stated by the resident defendant, Hugh Cooper, as a witness for defendants, but claimed that he, S. J. Cooper, .worked the team for the firm by the day and was so paid for it by the firm, that was a matter between themselves, however. S. J. Cooper, being an active member of.the firm, having a right to make such purchase and to execute the pa. Xjer of the firm in payment for the property, was reasonably taken by Giboney to be representing the linn in making the purchase, and there is no direct evidence of the fact that the plaintiff or his father, L. C. Giboney, had notice that S. J. Cooper was dealing for himself individually, and not for the firm, even if that were true. That was a question purely for the jury, which rendered its verdict for plaintiff, notwithstanding the instruction so favorable to the defendants given to it by the court. I am unable to see that the verdict of the jury should be disturbed. The judgment is therefore affirmed.
Affi/i'med.