8 W. Va. 584 | W. Va. | 1875
A. R. Kimmins suing for the use of George W. Richmond, on the 21st day of March, 1871, instituted his action of debt in the circuit court of Marshall county, and afterwards filed his declaration, in which he demanded |335, which he alleged that Wilson owed him, and alleged that on the 8th day of September, 1866, Wilson made his note in writing, by which he promised, on or before the first day of October in the same year, to pay to Kimmins the sum first mentioned, for value received ; but that Wilson had not done so.
Wilson pleaded first, that he was not indebted: — He pleaded secondly, that in August, 1866, Isaac Richmond and his brother George W. Richmond were actively engaged in getting up an organization called the Dallas Oil Company, to operate in the oil business, in Wood county, West Virginia; that Isaac Richmond presented ed to Wilson an oil lease or article of agreement, which recited, substantially, what follows : “The undersigned agree to become stock holders in a property located on White oak, close to the Great Hope, Darles and other’s v ells. This lot is well located for boring purposes,
Each of the last two pleas was verified by the affidavit of Wilson that the matters sot forth ‘in the plea were true, as to his knowledge, information and belief.
To each of the three pleas Kimmins replied generally
There was a trial before a jury and a verdict for Kim-rnins for the use of G. W. Richmond. Wilson moved fora new trial, which was refused, and he excepted, and the facts in part, and evidence in part, were certified.
As appears by the record, the agreement recited in the ■second plea was signed by Blair & Gibbons, with four shares, of the aggregate value of §1340, written opposite their names and by George W. Richmond, Isaac Richmond,. A. R. Ivimmins, James T. Wilson, Daniel Dagne and eight other persons, with one share of the value of §335, written opposite the name of each.
The evidence proves the following facts:
G. W. Richmond, who resided in Clarksburg, West Virginia, arranged with Blair & Gibbons, with reference to the lease mentioned in the agreement, and with a firm which, under a contract with Blair & Gibbons, had sunk the well then in operation and owned the property, for the purchase of their interest, engine and other property mentioned in the agreement, upon the condition that at or before the expiration oí sixty days, a company should be formed to take the lease and other property upon the terms suggested. The price of the lease does not clearly appear; but the price asked for the well, engine and other property was §3500. The agreement Avas signed by Blair & Gibbens, who took four shares of stock, and
According to the original understanding of the parties, after the organization, at the instance of the Company, Dague, the president, and Isaac Richmond went to the premises and aftenvards directed George W. Richmond to close the contract with the owners of the land and property; and he did so. They paid $1,500, and executed their note for $2,000 for the engine, fixtures, &c., and G. W. Richmond paid $1,000 and executed his note for the residue of the amount payable on the lease; and Blair & Gibbens made the title to the Company. And, with the understanding on Richmond’s part that the notes for unpaid subscriptions should be turned over to him, he paid the amount of that note. The testimony of George AV. Richmond is that Wilson agreed with him that if he would advance the amount of Wilson’s subscription the latter would pay to Richmond the amount of his note for $335 — though there was testimony tending to contradict this. The evidence proves that this note, with others, was afterwards turned over by Kimmins, as secretary and treasurer of the Company, to George AV. Richmond, for whose use it was understood the, money was to be paid. Assessments were twice made for $10, for working purposes, and paid. Kim-
The well, premises, fixtures, &c., wore, at the time of the formation of the Company and subsequently, in the condition described in the agreement. There were, in the immediate .vicinity of the property, wells producing oil; and in the opinion of witnesses it was good oil territory, and at the price given was cheap. But it turned out that the well worked by the Company produced but little oil, and that ivas of inferior quality. 'The investment was found to be unremunerative, and after about a month the well was abandoned and the fixtures left upon the premises.
Isaac Richmond represented to Wilson that he had seen thirty barrels of oil pumped from the well in twelve hours; that the oil was of superior quality, and that the well was a paying one; and that the money payable by the note given by Wilson could be made out of the oil before payment would be required.
The testimony of George W. Richmond ivas that Isaac Richmond was not his agent, though there was evidence tending to prove that he was such.
On the trial Kimmins testified that Wilson never received any consideration from him for the note; that it was executed to him as secretary and treasurer of the Company; that the legal title ivas not in him, and that he had not ordered the suit to be brought.
As there was no demurrer to the second and third pleas, and neither was entirely proven, it is sufficient to examine the evidence within the scope of the pleadings, and consider the facts which it proves, or is sufficient to prove. But where there is inconsistency, the testimony and all the inferences from it which might be drawn by a jury, without error, that tend to sustain the verdict, should be accepted, and such of the testimony as directly and irreconcilably conflicted with the former should be discarded. ■
Ry the original agreement, signed by the parties, each,, in effect, promised to the others, to pay, for the benefit of all, the sums of money stated after their names. These mutual promises constituted a valid consideration, the one for the other; and the contract was binding— whether it might be enforced in law or only in equity. Sewell, C. J. in Phillips Limerick Academy v. Davis, 11 Mass., 117; Myrick v. French, 2 Gray, 420; George v. Harris, 4 N. Hamp., 533; M'Auley v. Billenger, 20 Johns., (N. Y.) 89; Reformed Protestant Dutch Church v. Brown, 29 Barb., (N. Y.) 335; McDonald v. Gray, 11 Iowa, 508.
In order to carry the initiatory contract into effect,, the parties thereto met and organized themselves as the-Dallas Oil Company, a private partnership, and appointed Kimmins, the plaintiff, secretary and treasurer. Some of the parties severally paid in hand the amounts they had, respectively, promised to pay; and by the-agreement of the parties, expressed or implied, Wilson, and others, severally executed their notes payable to-Kimmins for the amounts which they severally had before promised to pay. Doubtless the parties agreed that these moneys should be held and used by Kimmins,, who was secretary and treasurer of the Company, for the benefit of all; and Kimmins, expressly or by implication, consented to do so. The previous -liability of
Moreover, according to the agreement of the parties, a large portion of the moneys agreed to be paid was, in-fact, paid to the agents of the Company, and they paid large sums to the owners of the leased territory, as well as the property purchased, and George AV. Richmond, himself, in behalf of the Company, paid large sums to these owners; and they, thereby, procured the lease of the territory and transfer of the property, and caused all to be vested in AVilson and the other partners for their own benefit.
Against the testimony of George AV. Richmond and the verdict of the jury, it cannot be held that Isaac Richmond was in fact the agent of the former. The relation of Isaac Richmond, in the negotiation that resulted in the execution of the contract between all the parties, and the organization of the Company, was as antagonistic to George AV. Richmond as it was to AVilson. Certainly that relation was not such as to bind others than himself, or to taint the contract with fraud or misrepresentation, as perpetrated by them, actually or con
But the material facts set forth in the agreement were true. In the immediate vicinity of the well were other oil producing wells; and in the opinion of witnesses, the territory in question was good oil territory, and cheap at the price paid for it. And most of the representations made by Isaac Richmond to "Wilson are not disproved. The only representations that may seem to be erroneous are, that the well then upon the premises was a paying one, and that the oil was superior in quality. This was so manifestly a matter of opinion, that it cannot be presumed to have furnished, to any considerable extent, the ground of the action of Wilson; and though he alone testifies on this subject — he does not suggest that Richmond’s representations induced his action. The well, however, at the time referred to, when the negotiation was made, may have been such as represented, and yet, soon after, may have failed to produce any but inferior oil, in quantities unremunerative. Beyond these representations there is no evidence of fraud. Under the circumstances they do not invalidate or affect the original contract or the note.
It would seem that the Company authorized Kimmins, as their secretary and treasurer, when George W. Richmond should have paid the note for $2,000, executed by Dague, the president, and himself, to transfer the unpaid notes for shares, to Richmond. He, Richmond, testifies that Wilson expressly agreed that if Richmond would advance the amount of Wilson’s subscription — for which he made the note — he would pay the amount. And Richmond did pay the $2,000, which .covered Wilson’s subscription ; and Kimmins, as secretary and treasurer of
ihie testimony of Kimmins, on the trial, that he had ■not authorized the suit to be brought in his name, could not tend to bar the recovery. If, as between the other members of the Company and Richmond, the latter had not the right to the money, Wilson could not, on the trial, without notice, show that fact to prevent a recovery, for the benefit of the person who ought to receive it.
The motion for a new trial was properly overruled, and the judgment of the circuit court was right and is affirmed with damages and costs.
Judghent Affirmed.