McCormick v. Bailey

17 W. Va. 585 | W. Va. | 1881

Moore, Judge,

announced the opinion of the Court:

As to the plaintiff’s understanding of the agreement between himself and the defendant,_ we ^e left to h.is original bill, amended bill, and depositions; and they clearly show such a state of uncertainty as to forcibly impress the enquiring mind with the idea of insincerity on the part of the plaintiff, or else such a defect in his memory as to weaken confidence in the allegations of his bills and in his testimony; and when taken in connection with the testimony in the case, without looking into the mere technicalities raised by the appellant, we are forced to say, that upon the merits of the case the decree complained of is without foundation in law and equity, and that the proper order should have been a dismissal of the bill for want of equity.

. The case justifies the language of the petition, that: “ By the answer to the original and amended bills and by the proofs taken, it fully appears that the defendant made no profits upon the interests formerly embraced in the plaintiff’s said optional contracts, but in fact sustained heavy losses; that all the profits he actually realized in the transaction were realized chiefly upon lands and interests in lands in which the plaintiff never had, and in which he does not even pretend to claim, any interest in either of his said bills.” The amended bill brought nothing material into this controversy, while the defendant denied in his answer thereto every material allegation thereof entitling plaintiff to the relief prayed for. The proofs in this cause wholly fail to show that any special or general partnership existed between the plaintiff and defendant, or that he stood in such confidential relation to the plaintiff as precluded him from making said optional purchases for himself alone, or such as gave the plaintiff any right to require him to account for the profits made thereby. But had a general partnership in fact existed, then the account thereof ought to have been settled, and the value of the assets belonging thereto which remained in kind ought to have been ascertained and divided between them, and the defendant ought not to have been charged with the nominal value thereof in money. The fact is, that the plaintiff’s rights had fully expired, certain of the former grantors had re-fused renew or extend the options, and at the time that jgai{ey made his contract with the parties, McCormick’s 0pti0ns had expired, leaving the field open to the world, as the evidence fully shows.

Taking this view of the case, it is plain, that the decree complained of is erroneous, not being warranted by the evidence, and must therefore be reversed, and the bill and amended bill must be dismissed, with costs, for the want of equity. And also the judgment on the forthcoming bond is therefore null and void, and should therefore be set aside and reversed.

Judges GreeN AND JOHNSON Concurred.

Decree reversed and the bills dismissed with COSTS. AND THE JUDGMENT SET ASIDE AND REVERSED.