114 Va. 58 | Va. | 1912
delivered the opinion of the court.
T. W. Kirkbridge, a general contractor, engaged in the construction of buildings of various designs, undertook the construction of a bank and office building in the town of Graham, Tazewell county, Va., for the Bank of Graham, a corporation, which building Kirkbridge completed in February, 1908. During the progress of the work Kirk-bridge employed the McClamrock Mantel Company, a corporation, to furnish certain material for and to do certain work upon the building, all of which material was furnished, and the necessary work in placing the same was done by that company, in accordance with its employment, and for which it was to receive 'from Kirkbridge, on or before December 2, 1907, the sum of $308.15, but the same was not paid, and, thereupon, the McClamrock Mantel Company filed its mechanic’s lien, pursuant to the statute in such cases made and provided against the bank and its said building, for the purpose of securing itself for the debt owing by Kirkbridge as general contractor.
To the first May rules, 1908, the McClamrock -Mantel Company filed its bill in the Circuit Court of Tazewell county, the object of which Avas to subject the balance
On the 29th day of May, 1908, the McClamrock chancery cause coming on to be heard upon the bill and exhibits filed therewith, taken for confessed as to the defendants, T. W. Kirkbridge and the Bank of Graham, upon the petition of the Keys Planing Mill Company and others, was "by decree then entered referred to Commissioner J. H. Stuart to take an account and make report of the enforcable liens against the property of the bank, and also to ascertain what was due from the bank to Kirkbridge, the general contractor, for the construction of the bank’s "building, etc., at the time of the filing of the various liens thereon.
Pursuant to this decree and after notice of the taking of the accounts ordered, by publication, Commissioner Stuart, on August 9, 1908, made his report showing the balance due from the bank to Kirkbridge to be $1,613.60, and among other items he reported the debt and lien of the Keys Planing Mill Company to be $3,124.85, including interest to the date of the report. On September 21, 1908,
It will be observed that, service of summons to answer the bill filed by McClamrock Mantel Company against Kirkbridge and the Bank of Graham was accepted by Kirkbridge, but that the summons to answer the petition filed by the Keys Planing Mill Company in that case, while-served upon the bank, was never served upon Kirkbridge, and that the notice of the taking of the account by Commissioner Stuart was by publication only.
• Section 3233 of Virginia Code, 1904, provides: “Any unknown party, or other defendant, who was not served with process, and did not appear in the case before the-date of such judgment, decree or order, or the representative of any such, may, within three years from that date,, if-he be not served with a copy of such judgment, decree,, or order, more than a year before the said three years, and if he be so served, then within one year from the time of such service, petition to have the case reheard, and may plead or answer, and have any injustice in the proceedings corrected.”
At the August term, 1910, of the Circuit Court of Tazewell county, Kirkbridge, by leave of court, filed his petition, the object of which was to have the decrees entered upon the petition of the Keys Planing Mill Company
There was some confusion of statement as to the style of the chancery cause in which the petition of Kirkbridge was intended to be filed, but if this had been of any importance, it was later made clear that the petition was intended to be filed, and was in fact filed, and proceeded upon in the cause of McClamrock Mantel Co. v. Kirkbridge et als.
Kirkbridge based his right to file his petition in said chancery cause upon section 3233 of the Code, supra, and the general grounds upon which he relied for a recovery of the $900 from the Keys Planing Mill Company, paid to the latter by Keceiver St. Clair, were that the decrees under which the said sum of money was received by the Keys Planing Mill Company were in a proceeding upon a petition filed in the McClamrock cause, of which he had no notice, and that prior to the date of the decree under which the Keys Planing Mill Company became entitled to recover said sum of money, and before the same was paid to it by Keceiver St. Clair, he, Kirkbridge, had paid off in full his indebtedness to the Keys Planing Mill Company. In other words, Kirkbridge’s petition sets forth that as general contractor for the construction of the building, etc., for the Bank of Graham, he became indebted to the Keys Planing Mill Company in the sum of $13,327.52, upon which sum he had paid $5,050.23, and on the 25th day of August, 1908, six days after the filing of Commissioner Stuart’s report in the McClamrock cause and before decree thereon, he, by conveyance of certain lots in Norfolk county, Ya., paid the Keys Planing Mill Company the full amount of the balance
With his petition, as exhibit No. 1, Kirkbridge vouches the following release:
“In consideration of the execution and delivery by T. W. Kirkbridge and wife of a certain deed dated August 25, 1908, conveying to the undersigned an undivided two-thirds interest in certain twelve lots of land in Coleman Place, Tanners creek district, Norfolk county, Virginia, the undersigned doth hereby release and cancel the indebtedness now due by the said T. W. Kirkbridge to it, the said debt being for the sum of $13,327.52, upon which there is a credit of $5,050.23, and for which a decree was obtained by the undersigned in the Circuit Court of the county of Mercer, State of West Virginia, on Tuesday, the 26th day of May, 1908.
“Witness the following signature this 25th day of August, 1908.
“Keys Planing Mill Company,
“By O. W. Pierce, Mgr.”
Pursuant to a decree entered in the cause on December 3, 1910, the Keys Planing Mill Company filed its answer
The Keys Planing Mill Company’s answer admits as true many of the statements of fact contained in the petition of Kirkbridge, but in effect takes the ground that even if the release (called a receipt) relied on by Kirkbridge does apparently cover the debt due from him to respondent, and upon which the $900 was paid to respondent under decrees in the Tazewell county suit some time after the receipt was executed, it was a mistake, as the receipt was not intended to have that effect, and in fact had no reference to said litigation; that when the agent of respondent, one C. W. Pierce, who conducted the transaction by which the Norfolk county lot? were taken over to respondent, and who really prepared the receipt in question, executed the same without advice of counsel, he never thought about the debt of respondent involved in the proceedings in Tazewell circuit court, but only had in view a decree in Mercer county, W. Ya., in favor of respondent against petitioner, Kirkbridge; that said agent knew of the suit pending in Tazewell county, but his signing a receipt covering a debt already decreed to respondent in that suit was a plain mistake and wholly unintentional on his part, and that to construe this debt and decree in Tazewell county, as covered by said receipt, would cause respondent to lose at least $6,000, owing to it by Kirk-bridge; that as Kirkbridge accepted process in person, to answer the chancery cause of the McOlamrock Mantel Company, and also accepted personally other summonses issued on some of the petitions filed in said cause, he had no right to complain that the proceedings upon the petition filed in said suit by respondent was upon publication
The debt asserted by the Keys Planing Mill Company against Kirkbridge, in the McClamrock cause pending in Tazewell circuit court, was evidenced by a decree rendered in the Circuit Court of Mercer county, W. Va., and the balance due on said decree is the debt reported by Commissioner Stuart as owing by Kirkbridge to the Keys Planing Mill Company, as above stated.
Exceptions filed by Kirkbridge to said answer were sustained, but leave was given the Keys Planing Mill Company to amend its answer at the next term of the court, and, accordingly, at the May, 1911, term, the respondent filed its amended answer, reiterating the statements contained in its original answer and relying thereon, except in so far as the same were explained or modified, to which amended answer Kirkbridge again filed exceptions, which were sustained by decree entered June 7, 1911, and it was thereby adjudged and ordered that Kirkbridge recover of the Keys Planing Mill Company the sum of $900, with interest thereon from September 29, 1908, until paid, and costs, from which decree and that entered in December, 1910, this appeal was allowed.
The first assignment of error presents the question, whether or not the circuit court had jurisdiction to allow appellee’s petition to be filed in the McClamrock cause.
We think this assignment is without merit. While appellee was a party to the McClamrock cause, and was bound by the decrees or orders entered therein, which re
The vital and controlling issue made by the petition of appellee in the McClamrock cause, the answers of appéllant thereto, and appellee’s exceptions to the answers, is whether or not the parties, by the transaction of August 25, 1908, intended that appellee was'to be released from his entire indebtedness to appellant, including the debt the latter was then asserting against the former in the Mc-Clamrock cause, pending in Tazewell circuit court, or was intended as a release only of the indebtedness of appellee to appellant other than the latter’s debt being asserted in said cause.
The original answer of appellant to the petition attempts a full history of the transaction and the circumstances under which C. W. Pierce, appellant’s manager, signed the receipt in question, and then says that its answer was framed wholly from information furnished by Pierce, which informtaion, as to the facts and circumstances under which the receipt was signed, when stated in the answer, are not materially different from the facts as stated in the petition; but it is insisted, in the answer, that if the receipt executed by Pierce was intended to cover the $900 decree of appellant, in Tazewell county, it was a mistake, etc. The amended answer makes the statement that one T. N. Fannin, vice-president of the company, alone made and concluded the transaction between the company and Kirkbridge, and that when the original answer was prepared, Fannin was in a distant western State and could not be communicated with in respect to the transaction.
The case stated by the answer of the appellant was not predicated upon the idea that parol evidence was admissible to contradict or vary the terms of the deed of appellee to appellant, conveying the Norfolk county lots, but upon the theory that the true consideration for the conveyance did not include the decree in the McClamrock cause in favor of appellant; that the so-called release was but a receipt, which could be explained; and that, as the conveyance of the Norfolk county lots had for its consideration one dollar “and other good and valuable consideration,” either party to the transaction had the right to show the true consideration for that conveyance.
The deed conveying the Norfolk county lots did not pretend to set out the real consideration for the conveyance, and for that reason, doubtless, the receipt or release in question was prepared and signed by Pierce for the appellant company; Pierce, as appellant’s answer states, having no personal knowledge as to what were the real terms of the settlement agreed on between Kirkbridge and Fannin, vice-president of appellant; and it does not seem to us that the receipt or release in question is sufficiently clear in its terms to have warranted the circuit court in construing it as a release upon its face of the money which had been decreed to appellant in the McOlamrock case. Therefore, we are of opinion that the circuit court should have required the appellee, first, to elect whether he would proescute his action at law pending in that court for the recovery from appellant of the sum of money involved, or litigate his rights thereto in this chancery proceeding; and, second, if appellee elected to prosecute his alleged right to the money in this proceeding, the court should have overruled his exceptions to appellant’s amended answer, and allowed the case to be determined upon the pleadings and the proof adduced.
It follows that the decrees complained of on this appeal have to be reversed, and the cause remanded for further proceedings therein not in conflict with the views expressed, in this opinion.
Reversed.