9 W. Va. 73 | W. Va. | 1876
This was a suit in equity, accompanied by an attach
The evidence is contradictory, but the substantial facts appear to be as follows: On December 31, 1873, the plaintiffs received of the defendant, on storage, some two thousand two hundred barrels of oil and gave their receipts to him, individually. He claims that the oil belonged to the Pit Hole Greek Petroleum Company, of which he was President. He admits, however, that he did not, at the time the oil was stored, or afterwards, inform the plaintiffs, that in storing this oil he was acting as the agent of the Company. On August 5, 1874, he called on the plaintiffs’ clerk for'a statement of the account, and requested him to make it out in the name of the Company. It had been charged, on the plaintiffs’ books, to George Rice, individually. The clerk, accordingly, so made out the account and handed it to the defendant. One of the plaintiffs’ sons was in the office, when this application was made, but it does not appear that he had any knowledge thereof; The defendant lived in the State of Ohio. On September 2,'1871, he came to Parkersburg, where the plaintiffs lived. The Company was then utterly insolvent, though they owned a large amount of property in West Virginia; and their insolvency was unknown to the plaintiffs. The defendant, as the President of the Company, was intimately acquainted with ail their affairs, and well knew that they were utterly insolvent. He called on the plaintiffs, paid to them one-half of ihe storage account, which was charged on the books to him, without saying anything about the oil belonging to the Company,"and asked for thirty days on the balance — $976. 30. The plaintiffs, or the one of them who was present, at first declined to wait the thirty'days for this balance. The defendant stated that he had been at considerable expense and outlay in building a large tank, at Marietta, Ohio, putting down oil wells, &c., and that he had sold the oil on time, and he thought he should have the
If the oil really belonged to the Company, as the defendant claims, and the weight of the evidence seems to establish that it did, then it is equally clear that the plaintiffs, on the second day of September, 1874, had a claim, not only against the defendant, but also against the Company, for the amount of the storage. See Thompson v. Davenport, 9 B. & C. 78.
Did the transactions of September 2, 1874, operate as a release of the defendant from all liability and a substitution of the Company as the sole party thereafter responsible to the plaintiffs? We think clearly not. A bill or note ought not to be regarded as an absolute payment or extinguishment of a precedent debt, unless it be so expressly agreed.. And that, too, whether the bill or note received is that of one of several previously bound, or of a stranger, or supposed stranger, to the transaction. Clark v. Mundal, 1 Salk. 124; Tobey v. Barber, 5 Johns.
The defendant, the President of the Pit Hole Creek Petroleum Company, well knowing that the Company was utterly insolvent, came to Parkersburg, for the purpose, doubtless, of taking the necessary steps to issue an attachment in AVift county against all the property of the Company, which lay in Wirt county, to satisfy a debt due him of upwards of $28,000 — to obtain a release ’of the lien which the plaintiffs had on the oil' which was stored with them in order that he might have it delivered to parties to whom it was already sold, that he might receive from them the purchase money, and to escape, as far as possible, from paying the - plaintiffs’ charges of storage and without mentioning the Company to the plaintiffs at all he got them to agree to take one-half of their storage charges in cash and to extend to him a credit of sixty days on the other half of these charges. This he got them to do, as also to deliver the oil on his order, by telling them that he had been at extraordinary expense in building a tank and other*work, and that he had sold this oil on a credit — leaving doubtless on their minds, at the time, the impression, that if the credit was given they would be paid out of the sale of the oil. When he undertook to draw up the note at thirty days, for the one-half of these charges, without having said a word about the Pit Hole Creek Petroleum Company, he draws the note in their name, payable to the plaintiffs, and signs it-with the name of the Company, by himself the President. And when the plaintiffs object to this note, in
The judgment appealed from must be affirmed with costs and damages to the appellee according to law.
. JudgmeNT , Affirmed.