86 W. Va. 322 | W. Va. | 1920
This suit was instituted for the purpose of establishing certain indebtedness claimed by the plaintiff against the defendant Mannington Window Glass Company, and subjecting to sale in satisfaction of said indebtedness certain property in the hands of the defendants John A. Ford and Marion Window Glass Company,, which it is asserted was transferred to those defendants by the defendant Mannington Window Glass Company in fraud of the plaintiff’s rights. The court below entered a decree adjudging that the plaintiff was entitled to recover certain of the claims asserted by it, and decreed that the property sought to be subjected to the satisfaction thereof was subject to such claims, and decreed the sale thereof in satisfaction of the same. He, also found that the plaintiff was entitled to recover on the other claims set up, and referred the cause to a commissioner to ascertain the amount of such recovery. He further decreed that any sale of the property should be made subject to a lien in favor of any first mortgage bonds which ma.y have, been issued and are outstanding, without determining whether there were any issued and outstanding, and, if so, how many. From this decree the defendants Mannington Window Glass Company, John A. Ford and Marion Window Glass Company prosecute this appeal.
The first matter which we are called upon to consider is a motion made by the defendant John A. Ford to quash the order of publication issued against him. He appeared specially for the purpose, and for the purpose only, of moving to quash the order of publication, upon the ground that the object of the suit is not sufficiently stated therein, in that it shows that the suit is brought to recover the amount of different notes, without showing to whom they were payable originally, or the dates thereof, or the time they had to run, or the amount thereof. An examination of the order of publication shows that the purpose of the suit is to recover a decree for the amount of certain notes and debts held by the plaintiff against the Mannington Window Glass Company, and to set aside certain conveyances, which are
It appears that prior to the 15th of May, 1916, the defendant Mannington Window Glass Company owned and operated a .glass plant, in the city of Mannington. This company •had been organized in the year 1914 by the defendant John A. Ford, A. J. Solomon, George E. McOulley, J., EV Braddoek, C.
A demurrer was-filed to the bill by the defendants Manning-ton Window Glass Company, Marion Window Glass Company and John A. Ford, and it is insisted that the court erred in overruling this demurrer. The only ground urged in argument in support of the demurrer is the failure to make the holders of the $65,000.00 of first mortgage bonds parties to the suit. It is insisted that inasmuch as the bill alleges that the-holders of ■these bonds took the same in fraud of plaintiff’s rights, and that the deed of trust executed to secure the payment of the bonds should be held subordinate to the, rights of the plaintiff in the property, they should be made parties defendants to the bill in order that they might have opportunity to protect their interests. Ordinarily a demurrer to a bill will not be sustained .unless it appears that the plaintiff is not entitled to any relief.
The defendants defend against the suit on the grounds: first, that the Mannington Window Glass Company is not indebted to the plaintiff, nor was it indebted to its assignor Solomon on account of the matters set up in the bill; and "second, upon the ground that even if it was so indebted the sale made of its property was a fair one for a full and adequate consideration, and free, from any fraud, and it is necessary for us to inquire whether either or both of these defenses are good.
As before stated, the plaintiff is the assignee of A. J. Solomon as to the open account set up in this case, and is likewise the assignee of A. J. Solomon as to the eighty-five, shares of stock held by it. It appears that the one thousand dollar note transferred to it was received from Solomon a few days afte,r its execution and before it was due. It claims to be the holder of the two five hundred dollar notes sued on, and of the note for $931.50 in due course, its contention being that Solomon had a loan at a bank in Mannington for whoch these notes were
It would se,em that there is no merit in the claim set up by it on account of the eighty-five shares of stock transferred by Solomon. Solomon was the owner of this stock at the time the Mannington Window Glass Company sold its properties and transferred it. to the-plaintiff subsequent to that date. The stock was present at the meeting at which the sale was made, Solomon being represented thereat by his duly authorized proxy and voting in favor of the sale. This being the state of the case, the plaintiff, when it acquired this stock, got nothing more than Solomon had at that time, and the, corporation having sold its properties with the consent and by the affirmative vote of these shares of stock, the holder thereof cannot subsequently tre,at his own action, or the action of his assignor, as a fraud upon his rights. The court below should have held that the plaintiff was entitled to no recovery be,cause of the eighty-five shares of stock.
Has the plaintiff proved that the Mannington Window Glass Company was indebted to Solomon in the amount claimed by him in the account presented at the time the, notes were issued ? It would seem from the evidence in this case that there is very little trouble, in coming to a conclusion upon this proposition. The amount claimed by Solomon is set up in the record. It is made up of monies which he claims were advanced by him to the company for the construction of its plant, and to pay his expenses while, he was engaged in supervising the construction, and- in locating the plant. There seems to be no dispute about the correctness of any of the items of this account, except that
86 W. Va.
But the plaintiff says that regardless of whether the defend- and Mannington Window Glass Company was indebted to Solomon it is entitled to recover upon the notes set up by it, for the re.ason that they were received by it in due course for a valuable consideration. If this is true, then the decree finding this amount against the Mannington Window Glass Company in favor of the plaintiff is correct, but the defendants assert that while these notes were executed in the name of the Man-nington Window Glass Company by J. N. Braddock, its treasurer, he had no authority to execute the same, and that they do not constitute valid and binding obligations of that company, wherefore plaintiff can recover no more than it can prove, the defendant Mannington Window Glass Company owed to Solomon; further, that even though the notes were executed by Braddock with full authority, some if not all of them are not held by the plaintiff in due course, and that as to any part not so held it cannot recover unless the Mannington Window Glass Company was indebted to Solomon in the amount represented by such notes, which we have already found not to be the case.
Upon the question of the authority of Braddock to execute these notes, there would seem to be little ground for contention. In addition to being the treasurer of the company, and in addition to showing that he executed practically all of the commercial paper issued by this company, and it is shown that it issued a great deal of it,.it appears that about the.time the op
But is the plaintiff the holder of these notes in due course? The proof is clear that as to the one thousand dollar note it received this from Solomon within a few days after it was executed and delivered to him, and that it paid him value therefor. Its right, therefore, to recover on that note cannot be disputed. The note for $931.50, it appears, was negotiated by Solomon to another party, and it is shown that after it became due it was paid to that other party, Braddock claims with money furnished by him. Solomon claims that the payment was made with money furnished by him, and that when the note was taken up it was returned to him because he had furnished the money to pay it off. The party who held the note after it was due states that Ford paid the same to him. As to how Solomon came into the possession of this note after it was paid off is not quite clear. Whether it was paid off with money furnished by him, and was
But the defendants contend that whatever may be the right of the plaintiff to recover against the Mannington Window Glass
The decree of the circuit court of Marion county will be reversed so far as it holds that the plaintiff is entitled to any recovery on account of the note of $931.50, or upon the open account set up- and relied upon, or upon the eighty-five shares of stock referred to in the bill, and referring the cause, to a commissioner to ascertain the amount of such recovery, and the decree entered here will find that the plaintiff is not entitled to recover thereon, and.in all other repeats said decree will be affirmed after being modified so as to reduce the amount thereof to $.2361.00, being the amount of the one thousand dollar note and the two five hundred dollar notes with their proper interest calculated to the third day of March, 1919, the date of the decree of the lower court, and also so as to provide that any sale of the property in satisfaction of the plaintiff’s demand as thus reduced shall be subject to the lien of the deed of trust securing the issue of sixty-five thousand dollars of first mortgage bonds.
Reversed in part, and modified and affirmed in part.