41 W. Va. 738 | W. Va. | 1896
A question has been raised whether there is any bill of exceptions, to enable us to review the case. There is a memorandum, made in term, at the close of the judgment, in the usual mode, stating that two bills were signed, sealed, and made part of the record, and a bill of exceptions signed by the judge; but, after the signature, we find appended a memorandum, signed by the judge, certifying that the certificate of facts was not presented to him for signature until more than thirty days after the term. The Court has concluded that the record of the case was made up and closed in term, and the bill then signed, as the record sets forth; and as it is the legal rule that a record is evidence of what it states of so high order that it imports absolute verity, no averment or proof to the contrary will be received. State v. Vest, 21 W. Va. 796. No evidence of inferior dignity shall contradict it. We do not think the certificate of the judge made afterwards is part of the record, to affect the antecedent, finished, closed record in the case. I am of opinion that what a judge does, under the statute allowing thirty days for a bill of exceptions, in settling and signing a bill of exceptions, would be a part of the record, because done in pursuance of law, unlike the certificate of the judge in Sweeney v. Baker, 13 W. Va. 159, which no law authorized him to make; but in this case the prior order in term asserts that the bill of exceptions was then signed. Which shall we take as stating the fact truly? I mean in a legal point of view; not that we have doubt of the truth of the fact stated by the judge in said subsequent memorandum. One states the signing of the bill as done at one time; the other, at another. We conclude that we can not overthrow the statement of the record proper with this subsequent memorandum. If that record had not shown a perfected bill of exceptions, and the record made up, then any certificate of the judge touching the matter would be evidence.
We will now consider the case. It was an action of assumpsit by Simmons against Looney. Looney had a contract for furnishing timber to a lumber company, and the plaintiff had a like contract with the same company; and,
The record discloses no ground to warrant this verdict save the theory that out of the one thousand five hundred dollars collected by Looney he was not bound to pay Simmons for his lumber in full, though collected more than thirty days after the delivery of the lumber, but he might apportion it between himself and Simmons according to the quantity of timber furnished by each; and that, for the balance, Simmons must wait until collection of the money yet due from the lumber company; and that on this theory
But let us suppose that the above proposition of law were wrong, and that Looney would have the right to apportion the money, and that he need not have paid as much as he did to Simmons; would he have the legal right to recover it back ? If he paid it under mistake of law that he had the right to apportion, it is clear that he could not recover it back. Shriver v. Garrison, 30 W. Va. 456 (4 S. E. 660 [points 6 and 7]); Beard v. Beard, 25 W. Va. 486. But counsel for Looney, admitting this legal proposition in his brief, would make the case a mistake of fact, and rely on the law proposition that money paid under mistake of fact may be recovered back. The only mistake he pleads is that he did not know how much timber Simmons had furnished. This fact he was bound to know; and, as it was readily ascertainable, not to know it was negligence. It was not misrepresented to him by Simmons. By no means is it the rule that in every instance money paid in mistake or ignorance of fact may be recovered back. The fact not known must be material in the matter. And, even where the fact is material, that alone is not always enough. “It must be such as the party could not by reasonable diligence get knowledge of when he was put upon inquiry; for if, by
It is inconceivable to me how it can be claimed that Looney, having it in his power to learn what Simmons’ timber came to, and under duty to do so, and without misrepresentation by Simmons, could pay voluntarily and recover back, under the particular circumstances of this case.
So that, if Looney had the right to apportion the one thousand five hundred dollars, having elected not to do so, because likely he was indulgent to the lumber company, and thought he ought to pay to Simmons, he could not recover back. But, in law, he had no right to apportion.
The judgment must be reversed, and a new trial granted.