68 W. Va. 422 | W. Va. | 1910
Lead Opinion
Plaintiff recovered a judgment in assumpsit against defendant in the circuit court of Raleigh county on the 23rd of February, 1909, for $8,944.35, and defendant sued out this writ of error. The case was once before in this Court and is reported in 63 W. Va. 373. It was then reversed and remanded for a new trial, because it did not appear that there was any consideration to support Jones’ promise to pay Gibson’s debt to plaintiff, and the promise, not being in writing and signed by Jones, was held to be within the statute of frauds. On the first trial the declaration contained only the common counts; but before the new trial was had plaintiff amended his declaration, and added a special count which sets forth in detail the circumstances attending the making of the promise by Jones to plaintiff, and alleges that the consideration for. the promise was the- payment of a debt which Jones himself at that time owed to one Gibson. The case was again tried by a jury upon the general issue. The testimony is very conflicting, but concerning the weight of conflicting testimony the jury are the sole judges, and we must, therefore, accept their finding upon the disputed facts. The special count relates to an item of $4,225.00, and interest, in plaintiff’s bill of particulars, and originated in a sale of land by plaintiff to Gibson, the consideration for which was about $8,000.00, and was to be paid in cash on the delivery of the deeds. When plaintiff and Gibson met for the purpose of completing the transaction, Gibson found that he did not have cash enough to pay for the land in full, and he called in Mr. Jones who, according to plaintiff’s evidence, said he would pay the balance, $4,225.00, due to plaintiff. Thereupon plaintiff delivered the deeds of conveyance for the land to Gibson, and, as he says, relied upon Jones’ oral promise,
It is insisted that Jones’ promise was to pay the debt in lands, and not in money, and that therefore assumpsit does not lie to recover the money. But suppose he did promise to pay in land at an agreed price, and afterwards refused to do so, plaintiff could sue for the money. Burr v. Brown, 5 W. Va. 341; Butcher v. Carlile, 13 Grat. 250; Turpin v. Sledd’s Exor., 23 Grat. 238; Stewart v. Donnelly, 4 Yerg. (Tenn.) 177; Gilbert v. Danforth, 2 Selden (N. Y.) 585; Minnick v. Williams, 77 Va. 578.
There is another theory, consistent with reason, authority and the proof in the case, on which assumpsit can be maintained for this item of $4,335.00, which is, that Jones’ promise to convey certain lands to plaintiff was an oral contract for the sale of land, fully paid for, but not enforcible in equity, because possession had not been delivered. On refusing to execute such a contract plaintiff has a right of action for money had and received for his use. Plaintiff had fully paid defendant for the land by delivering his deeds to Gibson and releasing him. There was nothing else for plaintiff to do to entitle him to the conveyance from Jones.
“To sustain the count for money received by the defendant for the use of the plaintiff, it is only necessary to show that the defendant has obtained possession of money, or received something as money which ex aequo et bono, he ought to refund.” 3 Enc. PL & Pr. 1016, and the numerous cases cited in the notes. Thompson v. Thompson, 5 W. Va. 190; Jackson v. Hough, 38 W. Va. 336; Martin v. Martin, 5 Bush (Ky.) 47; Mannen v. Bradbury, 81 Ky. 153.
The other controverted item in plaintiff’s bill of particulars filed with his amended declaration is an item of $4,102.50, and is described as being $7.50 per acre on 547 acres of land purchased by Manldn for Jones. This item was not included in plaintiff’s bill of particulars on the first trial; neither is it described by a special count in the amended declaration. The proof of this item, as well as the others, depends upon the conflicting testimony of witnesses. Plaintiff’s evidence proves that he and defendant' orally agreed that ^plaintiff should purchase this 547 acres of land at the price of $25 an acre, for the purpose of re-selling for a profit; that defendant was to pay for it and take title to himself; that they were to hold the lands until the price of $35 an acre could be obtained and that they were then to sell, and divide the profits equally. Plaintiff further proves that the lands were bought pursuant to that agreement and the title conveyed to defendant; that not long thereafter plaintiff found a purchaser who was willing to pay $40 per acre, and that he communicated this fact to defendant; that, in reply defendant wrote plaintiff as follows: “Your son just handed me your letter — I had just written one to mail you which I herewith enclose — Will be glad to see you if over this way— Your offer of 40.00 is certainly very tempting — I am almost too much surprised at such an offer to advise you on so short notice — This is certainly a fine offer and you might keep many years before getting a better offer.” Plaintiff further testified that within a week after the date of this letter he saw defendí ant, and urged him to accept the offer of $40 per acre; that he refused to accept it, and replied to plaintiff “that he had decided 'to keep the property.” Counsel for plaintiff in error insist that, this evidence, if true, establishes a partnership in the lands- between the parties, and that, there having been no' settlement of the partnership transaction, a suit could not be
In Seymour v. Freer, 8 Wall. 202, a contract, very like the one we are now considering, except that it was in writing while this one is not, was involved. Seymour and one Price agreed that Seymour should furnish $5,000; that Price should invest it in western lands and have title thereto conveyed to Seymour for the purpose of speculation. Price was to devote his time and judgment to making selections of the lands, but was to be at no other expense. The land was to be sold within five years thereafter; and, after deducting the price paid and seven per centum interest thereon, together with taxes and other expenses which were to be paid by Seymour, the net profits were to be equally divided between them. Price was to have no other remuneration for his services. The lands in that case were held by Seymour and his heirs for many years before any sale was made. In the meantime both Seymour and Price had died. The contract was made in 1835, and in 1855-6 one High, as agent for Seymour’s heirs, sold portions of the land at $69,200, thus realizing an enormous profit on the original investment. Freer, as administrator of Price, brought a suit in equity against Seymour’s ’ representatives for an accounting, and for the recovery of Price’s share in the net profits. The Supreme Court
The supreme court of Illinois, in the case of Barling v. Peters, 131 Ill. 78, and the supreme court of Indiana, in Ellsworth v. Mace, 33 Ind. 73, followed the Seymour v...Freer Case in construing similar contracts, and held that a trust relation ■was thereby created.' That such a contract does not create a partnership is further borne out by the following authorities: Bowyer v. Anderson, 2 Leigh 550; Snodiker v. Applegate, 24 W. Va. 411; Bruce v. Hastings, 41 Vt. 380; Gottschalk v. Smith, 54 Ill. App. 341, affirmed in 156 Ill. 377.
Assuming, then, that a trust relation existed, plaintiff has proved that he had performed fully his part of the agreement. But Jones had broken it.and has repudiated the trust. This gives Mankin the right either to compel a performance of the contract in equity, or to sue at law to recover damages for its breach. The fact that the agreement gives Mankin an equitable interest in the profits to be derived from a sale of the land does not preclude him from suing at law for its breach. It is a lawful contract which a court of law recognizes as creating substantial rights, although it cannot specifically enforce it. It-■was the opinion of all the justices, expressed in Seymour v. Freer, supra, that an action at law would lie in favor of Price against Seymour for a breach of the contract between them. This is obiter, it is true, but it comes from a very high source, and is none the less a correct' statement of the law, because it happens not to be a question decided in that case. Mr. Justice Field, in his dissenting opinion, at page 227 (8 Wall. 202), says: “Undoubtedly Price could have maintained ah action at
In the present case it does not appear that Jones accepted the trust and administered it for a while, and then refused to complete it. But it appears from Mankinds evidence that he brake the agreement soon after he acquired title to the trust subject, and before he had performed a single act in his capacity as trustee. In fact, that he denied and repudiated the trust. No accounting was, therefore, necessarjq and Mankin had the right to elect which remedy he would pursue, whether a suit in equity to compel performance, or an action at law for the breach. The rights, under such a contract, are analogous to those growing out of a contract for the sale of land which, although in writing, cannot be enforced in a court of law, still it is recognized by courts of law, as a binding obligation, for the purpose of giving a right of action for its breach. Actions at law for the breach of contracts for sale of land are common. 3 Sedg. on Daiyu, section 1006, and cases cited in note; Wilson v. Spencer, 11 Leigh 261; Thompson's Exor. v. Guthrie's Exor., 9 Leigh 101. But in equity such contracts create an equitable estate in the purchaser.
The parol contract between Mankin and Jones is a binding contract, not being a contract for the sale of land, and, therefore, not within the statute of frauds, according to our recent decision in Floyd v. Duffy, 68 W. Va. 339; Ludwick v. Johnson, 67 W. Va. 499 (68 S. E. 112); Same v. Same, 58 W. Va. 464; Currence v. Ward, 43 W. Va. 367. Mankinds evidence proves that he had done all that he was required to do under the agreement; and when he found a purchaser who was willing to buy the land at $40 an acre Jones refused to sell, and replied to Mankin that he had decided to keep the land. This constituted a breach, entitling Mankin t'o damages. Judge BRANNON and I are of opinion that, on Jones’ refusal to sell the land and his statement to Mankin that he had decided to keep it, gave Mankin the right to elect to treat him as the purchaser at the price of $40 an acre,-and a right to sue for his share of the proceeds, as for money had and received by Jones for his use, in which
Money due under a special contract may be recovered on a common count in assumpsit whenever it appears that plaintiff has entirely performed his part of the agreement, and nothing remains to be done except the payment of money. 1 Chitty on Pleadings, (16th American Edition) 359; 2 Tucker’s Com. 131; Bruce v. Hastings, 41 Vt. 380. But a majority of the Court do not accept this view. I am also of the opinion that Mankin can elect to treat the contract as broken by Jones, and sue him for its breach; and this is the opinion of a majority of the Court. In this view of the case, the action so far as it relates to the item in the bill of particulars for $7.50 an acre on 547 acres of land, appears .from the plaintiff’s evidence to be for damages for the breach of a special contract which is not declared on, and- not provable under any of the common counts. There is, consequently, a variance between the pleading and the proof for which the court should have sustained defendant’s motion to set aside the verdict and grant him a new trial. Evidence, without proper pleading, will not support a verdict; the allegata and probata must correspond. Berkely v. Cook, 3 Call 378; B. & O. R. R. Co. v. Skeels, 3 W. Va. 556; Loomis v. Jackson, 6 W. Va. 613; Hutchinson v. Parkersburg, 25 W. Va. 226. But plaintiff is entitled to amend his declaration to make it conform to his proof, Hutchinson v. Parkersburg, supra, provided, however, there is no objection to such amendment as constituting a departure from the original cause of action. Hanson v. Blake, 63 W. Va. 560. But if objection should be made to amending the declaration in order to include the item now under consideration, it cannot be so amended, because it would be a departure from the original cause of action. It constitutes an additional claim, and would introduce-into the case a new substantive cause of action. Snyder v. Harper, 24 W. Va.
There is error in plaintiffs instruction Fo. 2 which calls for a reversal in any view of the case. It fails to submit to the jury the question of fact whether, or not, there was an agreement between Mankin and Jones whereby they were to divide the profits of the land above $25 an acre, whenever it could be sold for $35, or more, per acre. It asujo.es, as matter of law, that if the jury find certain other facts, submitted to them by the instruction to be true, they should find that Jones is liable to Mankin in the sum of $7.50 an acre. Mankin’s compensation, or share in the profits, was a controverted'fact, and should have been submitted to the jury. Jones testified that Mankin was not to get any part of the proceeds from the land.
Defendant’s instructions Fos. 1 and 3 are bad, and were properly refused. His Fo. 4 does not appear in the record. His Fo. 2 is bad, and it was error to give it, because it states the law-to be that Jones’ promise to pay Gibson’s debt to Mankin, in order to be binding, must be in writing and signed by him, or his agent. This is not the law, as we have before said, if there is a new consideration to support Jones’ promise. His Fo. 5 is bad for the same reason, and for the additional reason that, notwithstanding Jones’ promise was made in the alternative, either to pay Mankin the $4,225, or to convey to him the Trump land, still Mankin had paid Jones’ debt to Gibson, pro tanto, by turning over his deeds to Gibson and releasing him from the payment of the purchase money, he had a right to recover against Jones, on his refusal to convey the Trump land, for money paid for the use of Jones at his request. The instruction tells the jury that such an oral promise is void.
We see no error in defendant’s instruction Fo. 6.
Because of the errors herein pointed out, the judgment of the lower court will be reversed, the verdict set aside, and the case remanded for a new trial.
Reversed and Remanded.
I suppose the instruction must reverse the ease. My position on the question whether there could be a recovery by Mankin on the common count for the land purchased has been and is,
Concurrence Opinion
(concurring):
Having found no authority, giving an action at law for a mere breach of a trust, securing only an equitable interest in land,' such as the evidence here,' viewed in one of its aspects, discloses; and regarding the legal remedy as being wholly inconsistent with the rights of the parties, considered as trustee and cesiui que trust; I am constrained to dissent from so much of the opinion and decision as declare the legal remedy appropriate and applicable. In my opinion, Seymour v. Freer, 8 Wall. 202, asserts no such doctrine. As the land in'that case had been converted into money by the execution of the trust to the extent of sale, so that the legal and equitable titles of the plaintiff might be regarded as having reunited, the majority of the court could consistently say the plaintiff could have sued at law for the money. As Mr. Justice Field denied the existence of any trust relation or equitable title, regarding the contract as one for services only, of course, he could well say an action at law was appropriate. In that view of the case, it was the only remedy.
Allowance of the legal remedy alters the contract the parties made. Indeed, it virtually makes a new contract for the parties. Jones never promised to pay a commission of $7.50 per acre, under any circumstances, out of his own pocket. Mankin was to receive his money out of the proceeds of the land, not from Jones personally. Limitation of his redress to the equity court preserves, continues and executes this contract, without extending it — gives him exactly what he bargained for and no more.' Allowance of the legal remedy treats the obligation as.a personal one in all respects. It enables Mankin to sue Jones precisely as if he had promised to pay the money the former seeks, out of his own pocket and at all hazards. Even courts of equity deny the power to make contracts for parties where justice and good conscience seem to demand it.
Nor do I think Jones can be treated in a court of law as having purchased the interest of the plaintiff in the land. The same general principle applies here. In the view of a court of law, Jones takes nothing from him in withholding or refusing to yield that interest. It is a thing unknown to the law. The principles applicable to waiver of a tort have no application. In all such cases, a legal right, not a mere equitable one, is invaded, and, upon it, the law founds a promise. Here it cannot do so on that principle, for there was no legal right in the plaintiff.
If the land had been sold, the right of the plaintiff to sue at law would be plain. Then the purpose of the trust, that for which the legal and equitable titles were separated, would have' been fully accomplished, the trust ended and the legal and equitable titles reunited. The defendant would then have had money in his hands belonging to the plaintiff. The many cases,' illustrating this principle, need not be cited, as a little -investigation will readily disclose them.
Subject to the exception here indicated, I concur in the de-' cisión. ■ '