48 W. Va. 550 | W. Va. | 1900
Smith, Myers and Schnier of Cincinnati, in the fall of 1896, proposed in writing to sell to Braxton Lumber and Coal Company certain machinery, and fixtures for a mill named and described in said proposition, which closes as follows:
“We will deliver the above on ears in Cincinnati not later than November 1st, for the sum of five thousand four hundred dollars, terms five hundred dollars cash, five hundred dollars in thirty days and the balance' in equal payments at four, six and nine months, with interest at six per cent, from date of shipment ; settlement to be made on date of shipment, and notes to be signed by the Braxton Lumber and Coal Company, and to be endorsed by Hudson & McCue, John Bmard, W. H. Yeno and W. J. Spahr. The machinery mentioned is guaranteed to be good material and workmanship, and if properly handled with logs of good quality and fair size to cut from poplar twenty-five thousand feet per day. Yours respectfully,
“Accepted.
“(Corporate Seal).”
“Smith, Myees & SohNiee.”
“Braxton Lumbee & Coal Co.,
“By W. A. HUDSON, President.
This proposition is without date. In October, 1896, while the machinery was being prepared, some correspondence took place between Smith, Myers and Schnier and the Braxton Lumber and Coal Co. about further security for the deferred payments by deed of trust, or mortgage on the goods to be furnished under the contract, thp vendee through its president expressing a willingness to execute such lien. On the 25th of November, 1896, Smith, Myers & Schnier wrote the vendee, “We are in receipt of your favor of the 24th inst., enclosing checks and notes in full settlement for saw mill machinery shipped you recently in accordance with agreement for which kindly accept our thanks. We have sent you a good mill outfit and know that it will give you entire satisfaction, and trust you will soon have it up and running. With regards, etc., we remain, Yours truly.”
“We will give you for the claim of Smith, Myers & Schnier, against the Braxton Lumber & Coal Company and take the same without recourse five hundred dollars cash, five hundred dollars three months, five hundred dollars six months, negotiable paper with six per cent, interest, with the privilege of paying before*553 that date, to be accepted or rejected by 9 a. m. this date,” which proposition was rejected. They then offered one thousand five, hundred dollars in cash, which was accepted on November 24, 1897, and assignment and transfer made on that date, as follows : “In consideration of the sum of fifteen hundred dollars to us paid in cash by J. S. Ilyer and J. H. Chapman, the receipt whereof is hereby acknowledged, we the undersigned do hereby sell, assign, transfer and set over unto the said J.. S. Hyer and J. H. Chapman all our right, title and interest, liens and claims in and to the saw mill, machinery and appliances, located on the land of the Braxton Lumber & Coal Co., in Braxton County, West Virginia, described in two certain reservations of liens signed by Smith, Myers & Schnier and filed respectively on December 11, 1896, and March 3, 1897, with the county clerk of Braxton County, West Virginia, and recorded in trust deed book No. 3, pp. 169 and 217, and to enforce which suit is now pending in Braxton County circuit court. This assignment and transfer is without recourse on us.
“In witness whereof we have hereunto.set our hands this 24th day of November, 1897.
“Smith, Myers & SchNiee,
“HERMAN P. Goebel,
“Assignee of Smith, Myers & Schnier ”
On the 17th day of December, 1897, J. S. Hyer and J. H. Chapman sued out their subpoena in chancery in the circuit court of Braxton County against S., M. & S. and Herman P. Goebel their assignee, and filed an affidavit and sued out an order of attachment and designated James B. Fowler as being indebted to and having in his hands money and effects of said defendants. And at the January rules, 1898, filed their bill, alleging that they were informed and believed that S., M. & S. sold to B. L. & C. Co. certain machinery and caused two notices to be recorded in which they claimed to have reserved the title to said property until the purchase money should be paid thereon; that said S., M. & S. made an assignment to'Herman P. Goebel, assignee, for the benefit of their creditors; that shortly prior to November 24, 1897, said S., M. & S. and the said assignee through their duly authorized agents and representatives, represented to the plaintiffs that said S., M. & S. had by contract with the B. L. & C. Co. reserved the title to the said machinery so sold it until the purchase money should be paid thereon, and that there
The defendants owned a debt against the B. L. & O. Co., represented by notes given by said company, and endorsed by individuals, for the price or a part of the price of certain goods and chattels sold to the company, the maker of- said notes. Defendants had caused notices of reservation of title to said goods and chattels to be recorded as provided by section 3, chapter 74, Code. It is admitted in the answer of defendants that they represented to plaintiffs at the time of the purchase by them of the claim for one thousand five hundred dollars cash, that the reservation of title as shown by said notices was by contract with the vendee, and that there was about three thousand four hundred dollars due defendants on said claim. Plaintiffs claim that having learned that there was no contract between the defendants and vendee for the purchase of said machinery authorizing such reservation of lien, and that a large part of the three thousand four hundred dollars had been paid prior to the purchase, the representations of defendants being false and fraudulant plain
Affirmed.