140 S.E. 330 | W. Va. | 1927
Upon a verdict in favor of A. Smiley against the Bank of Wyoming for $2,397.76, a judgment was entered on November 6th, 1926, from which the bank prosecutes error. The claim of plaintiff on which the verdict and judgment was based consisted of two items; namely: usurious interests collected from him by the bank, amounting to $2,025.75, and interest on same of $364.65; and amount due to him from the bank for one-half of the costs of a party wall, amounting to $1,375.00, and interest upon same of $37.50, making a total claim of $3,802.90. The bank pleaded non-assumpsit, the statute of limitations and the statute of frauds. After motions to strike the two special pleas of limitations and statute of frauds were overruled, issue was joined thereon.
On behalf of defendant, Daubenspeck says that the board of directors never agreed to pay plaintiff for one-half the costs of the wall and never did pay him because they considered that he had taken a larger portion of the two lots for $6,000.00 than he was entitled to. He says he was present when Toler brought the contract to be signed by Sullivan and Sullivan refused to sign because Smiley had not delivered the deed. While some of the directors, including himself, objected and protested against allowing Smiley to retain a little more than one-third of the two lots at $6,000.00, no protest was made of record, nor to Smiley, and his deed was accepted and placed to record. It appears that no record was made by the directors concerning the purchase of the lots, from its inception to its close, although it was well known to them that the lots were being purchased for the bank through Smiley. Sullivan thought that Deegans, Trustee, the owner, would not sell if he knew that Sullivan was the buyer for the bank; hence the indirect way of purchase through Smiley. Dr. Wood, a director, says that the bank never agreed to pay Smiley for the party wall, although no record of refusal was made; that the matter was talked over informally among some of the directors at different times, and they considered that Smiley had retained more land at $6,000.00 than was just and proper; that he should have been required to pay at least $8,000.00 for the part he retained, and they considered that this difference paid him for the party wall. J. A. Mace, a director, says the matter was brought up and the directors considered that Smiley was getting the price of the party wall in his share of the lot, and that they never agreed to pay him for the party wall. He says this attitude was taken by the directors about August 1922, after the hotel was erected. He says the bank refused to accept the deed because it did not include the party wall. H. W. McNeil, a director, who became such January 1st, 1922, says that several of the directors were adverse to paying for the party wall, while Mr. Sullivan was favorable to it. He says that in a conversation *475 at the hotel in May or June, 1921, between Toler, Sullivan and himself, he gathered the impression that Sullivan had agreed in some manner to pay Smiley for the party wall. Sullivan was not a witness. This is the substance of the evidence relating to the party wall claim. From this evidence it appears that the bank desired to purchase the two lots, and knew that Smiley, through Sullivan, acted for them. Smiley borrowed from the bank the down payment, and the bank knew the purpose of the loan. The officers of the bank knew that Smiley had taken the title in his own name and had begun the erection of a hotel on the western one-third of the lots. He borrowed the money from the bank to build the hotel. On June 25th, 1921, the bank knew that Smiley was retaining a little more than one-third of the lots on which he was erecting the hotel, at $6,000.00, and requiring payment for one-half of the cost of the wall. The cashier in the presence of some of the directors requested payment for the party wall to be eliminated from the deed tendered to the bank, and that a separate contract concerning the party wall be prepared. The deed and contract were so prepared, but the contract was not signed by the president because the deed had not been delivered. The bank's officers deny contribution for the wall on the theory that Smiley should have paid at least $8,000.00 for his part of the lots, and therefore he was not entitled to be paid for the wall. Sullivan agreed to pay by having the amount when ascertained credited on Smiley's note in the bank. Smiley was dealing with Sullivan and knew nothing of the bank's interest in the matter, except that he made his deed to the bank by direction of Sullivan and Toler. He did not know that the directors had informally determined that he was not to be paid because the bank did not get enough land when he delivered the deed. Sullivan had agreed with him that he could erect his wall as a party wall and that he would be repaid for one-half thereof when finished.
No instructions were given to the jury. Defendant made a motion to strike out all of Smiley's evidence of his agreement with Sullivan, on the theory that Sullivan had no inherent power or authority as president to contract with *476
Smiley. This motion was overruled, and defendant's counsel says it was error, citing First National Bank v. Kimberlands,
Where the acts of an agent are unauthorized, if the principal accepts the benefits of that act it cannot repudiate the obligations arising under it. "Where a private corporation accepts the benefits of a contract made on its behalf by an unauthorized agent it thereby ratifies the contract in its entirety and will be bound to perform its obligations provided for by the contract to be performed on its part."Chafin v. Main Island Coal Co.,
There is no reversible error, and the judgment is
*479Affirmed.