79 W. Va. 445 | W. Va. | 1917
In February, 1907, Jesse Shuman died seized of a tract of 247 acres of land, leaving to survive him a widow, Massa Shuman, and five children as his only heirs, two of whom are the plaintiff and the defendant. On the. 17th of June, 1907, S. M. Shuman, the plaintiff, sold his one-fifth undivided interest in the Pittsburg seam of coal underlying said tract of land to his brother T. A. Shuman, the defendant, at the price of $1,235.00, payable in ten days thereafter. Within the ten days defendant paid to plaintiff $823.32, two-thirds of the price, and thereupon a deed was immediately made by all five of the joint owners; in which the widow joined, conveying the entire Pittsburg vein of coal underlying the land, together with certain mining privileges, to H. C. Babb.
This action of assumpsit is brought to recover the balance claimed by plaintiff to be due on the contract of sale to his brother. Defendant pleaded the general issue, and also tendered and was permitted to file five special pleas, all of which however were, on motion of plaintiff made at a subsequent term, stricken out over defendant’s objection. The case was then tried on the general issue, resulting in a' verdict for plaintiff at the direction of the court. The defendant’s motion to set the verdict aside was overruled and judgment entered thereon for $635.33.
Striking out defendant’s special pleas is assigned as error. The first plea avers plaintiff agreed to sell and convey to defendant the one-fifth interest in the coal, free from all in-cumbrances, and that, pursuant to that agreement, plaintiff, at the request of defendant, executed a deed with covenants of general warranty of title to H. C. Babb; that Massa Shu-man, widow of Jesse Shuman, deceased, was then entitled to dower in the coal, which was an existing incumbrance and, therefore, constituted a breach of plaintiff’s warranty; that defendant was compelled to pay her the sum of $411.67 in order to procure a release of her dower right in the coal; and that he has thereby sustained damages equal to the amount
Plea No. 2 avers that payment of the sum sued for was made to Massa Shuman, the widow, at the special request and instance of plaintiff. Payment by the debtor to a third person, by direction of the creditor, is as valid as if made to the creditor in person. Exchange Bank v. Cookman, 1 W. Va. 69; 30 Cyc. 1183; Hurst v. Whitly, 47 Ga. 366; and Baughan v. Brown, Admr., 122 Ind. 115. And the defense of payment need not be specially pleaded, hut may be proven under the .general issue. Shore v. Powell, 71 W. Va. 61. However, the rule is different, requiring plea of payment and bill of particulars, if the payment is partial only. Shanklin v. Crisamore, 4 W. Va. 134; Simmons v. Trumbo, 9 W. Va. 358; and Lawson v. Zinn, 48 W. Va. 312. Hence this plea was unnecessary and, therefore, properly stricken from the record.
Pleas Nos. 3, 4 and 5 set up, in varying form, the same defenses averred in the first two special pleas and were, therefore, properly rejected.
It is admitted that defendant paid two-thirds of the amount for which the note was given within the time specified, and defendant offered to prove that he paid the remaining third to Massa Shuman the widow, at plaintiff’s request, but the court refused to admit this testimony. Payment to a third person by direction of the creditor being a legal discharge of the debt, this testimony was admissible. It tended to prove a fact which should have been submitted to fhe jury, and which, if proven to their satisfaction, was a •complete defense.
Although defendant’s competency to prove payment to his
Defendant offered to prove that plaintiff, as administrator of their mother, disbursed to him his distributive share of the proceeds of her estate, long after the note sued on was payable, and did not then mention the debt now sued for, but the court refused to admit this testimony. This testimony, while not direct, is nevertheless corroborative of defendant’s testimony tending to prove payment to his mother and should have been admitted.
Plaintiff requested two instructions to be given to the jury, both of which were refused. The first one was to the effect that, if the jury believed from the evidence plaintiff and defendant agreed that one-third of the money due on the con
The court’s refusal to give these instructions was consistent with its rulings on the evidence, which rulings we have determined were erroneous. Defendant’s testimony being excluded, there was no basis for the instructions. But they should be given, if again requested on a new trial, provided defendant’s evidence, which was erroneously excluded, is offered on such trial.
For the reasons already given it was error for the court, to direct a verdict for plaintiff. The conflicting testimony presents a fact which the jury should determine. The judgment is reversed, the verdict set aside and the cause remanded for a new trial.
Reversed, and remanded for new trial.