54 W. Va. 381 | W. Va. | 1903
This is a writ of error to a judgment for $111.83, rendered by the circuit court of Wetzel County, in an action commenced before a justice of the peace, which was carried up to the circuit court by appeal. The principal sum recovered is one hundred dollars, which the fifteen plaintiffs claim to have paid for the use of the defendant, A. C. Ruby, as a part of the sum which he agreed to contribute in a partnership, or joint ownership, venture, in respect to the purchase and handling of a stallion in 1898. At that time, one Tracy, an agent of Fletcher & Coleman, of Wayne, Illinois, brought to New Martinsville a Perdieron horse which he proposed to sell for the sum of eighteen hundred dollars, and began his negotiations with 'the defendant Ruby. He had a printed form of contract which
No copy of this paper appears in the record, the paper itself having been misplaced before the action was brought. Evidence of its contents was given. Some two or three of the plaintiffs testified that it fixed the price of the horse at eighteen hundred dollars, for which two notes of nine hundred dollars each were to be executed by the parties signing it, and that it specified the interest each signer was to have in the horse, and the amount which he bound himself to contribute to the undertaking, by making the shares one hundred dollars each. They also testified that the paper had on it Ruby’s subscription to two shares, when they signed it. After the other sixteen shares were made up, two nine hrmdred dollar notes, both negotiable, were executed by all the parties except Ruby, he not being present at the time, and they supposing that he would sign them. He did not, however, and the first note was endorsed by the payees and passed into the hands of Joseph Probst. Ruby denies that any of the blanks in the printed form were filled up at the time he signed it and also that he subscribed for any number of shares. He further claims that he repudiated the whole matter and announced that he would have nothing to do with it, because Mc-Munn and Witten had not joined him in the enterprise, and he had not authorized Tracy to obtain the signatures of the persons who did sign. He is, to some extent, corroborated by other witnesses. But G. B. Woodcock, B. B. Newman, Louis Dulaney and Jacob Yoho, all parties to the transaction, testified positively and fully, not only that they had no notice of Ruby’s repudiation and refusal to go on with the undertaking until after the notes had been executed and delivered, but also to several admissions in different forms on the part of Ruby, and conduct on his part well calculated to lead them to believe the contrary.
At the maturity of the first note, it was paid by the makers and then this suit was brought to recover from Ruby said sum of one hundred dollars, his proportion of the amount paid.
That the paper was in the form in which the witnesses for the
By signing the contract and delivering it to Tracy to obtain other signatures sufficient to make up the eighteen hundred dollars at one hundred dollars per share, without anything on • the paper to indicate what parties were to join him in the enterprise, or that his subscription was conditional, Ruby placed himself in a situation similar to that of one who signs a bond or other obligation upon condition that certain other persons shall sign it before it shall become effective as to him. The paper he signed was not only an obligation to Fletcher & Coleman, but a contract of co-partnership or joint ownership with such persons as might thereafter subscribe for the remaining sixteen shares. The subscribers for these sixteen shares, relying upon his subscription, and without any notice that it was conditional,. executed a negotiable note, whereby they placed themselves almost in the same situation as if they had parted with eighteen hundred dollars cash, two hundred dollars of which was on the faith of his signature. Had Ruby signed a note, upon such condition, and it had passed into the hands of a stranger, for valuable consideration without notice of the condition, he would be absolutely bound. The principle involved here is exactly the same.
“A bond which is a complete and perfect instrument on its face at the time of its delivery to the obligee, was executed by persons as sureties, upon the condition that it should not be de-
But aside from this principle, it was competent for Euby to waive that condition, and there was evidence that he did waive it, by looking over the contract afteT it had been completed, expressing his satisfaction with it, and encouraging, at least one of the parties to go on and organize the company, as it was called, under it. lie denies this, but, as stated, the court has found against him and the evidence against him is as strong as the evidence in his favor. Hence, under the rule, this Court cannot disturb the finding. Board v. Parsons, 24 W. Va. 551; Lewis v. Alkire, 32 W. Va. 504; Hysell v. Coal Co., 46 W. Va. 158; Englerth & Rowland v. Kellar, 50 W. Va. 259. His condition is even worse than that. The case was tried by the court in lieu of a jury, and is regarded as standing upon a demurrer to the evidence, considering the plaintiff in error as demurrant. Board v. Parsons, 24 W. Va. 551; Claflin v. Steenboch, 18 Grat. 842; Lewis v. Alkire, 32 W. Va. 504; Black v. Thomas 21 W. Va. 713. By demurring to the evidence, he has admitted, in favor of the demurrees, all inferences of fact that may be fairly deduced from the evidence. Mapel v. John, 42 W. Va. 30; Talbot v. Railroad Co. 42 W. Va. 561; Garrett v. Ramsey, 26 W. Va. 345; Gunn v. Railroad Co., 42 W. Va. 676; Lewis v. Alkire, 32 W. Va. 504.
The only other objection to the judgment is, the claim that the action involves the settlement of partnership accounts and, therefore, presents a subject matter belonging to exclusive equity jurisdiction, one not cognizable by a court of law. A part of the claim set up originally in the justice’s court was open to this objection, but the circuit court eliminated it and refused to permit the plaintiffs to take anything there except the one hundred dollars with interest and costs. This sum is plearly no part of the partnership account. It is a part of what
“If a contract, though made concerning the partnership affairs, and in furtherance of the joint undertaking, is the individual contract of the parties who are parties to it, and if it is made by them in their own name, and not in the name of the firm, an action may be maintained thereon by one against the other, during the continuance of the partnership.” Wright v. Michie, 6 Grat. 354.
From these principles, it results that the judgment must be affirmed.
Affirmed.