41 W. Va. 623 | W. Va. | 1896
On the 14th day of October, 1893, a suit in equity was instituted by George S. Smith against William A. Zumbro (in his own right, and as administrator of the estate of IL A. Zumbro, deceased), Rebecca J. Zumbro, George W. Silcott, Hagan Barr, and Annie E. Barr, in the Circuit Court of Calhoun county, the principal object of which suit appears to have been to settle certain partnership accounts existing between the plaintiff, George S. Smith, and the defendant William A. Zumbro, growing out of a partnership in the mercantile business carried on by them previous to the 11th day of April, 1879.
The bill, among other things, alleges that while engaged in the mercantile business they dealt in timber and staves, and other lumber products, at Grantsville, in said county
It is also alleged that on the same day the plaintiff paid to said attorney two hundred and twelve dollars and forty cents, costs of said ejectment, also the sum of twenty six dollars and ninety five cents, costs of said action of trespass, and eighty one dollars and eighty five cents, costs of the suit in equity, for each of which sums he took said attorney’s receipts, which are exhibited with the bill.
It is further alleged in plaintiff’s bill that the said firm of Zumbro & Smith on the 11th day of April, 1879, executed to Smith, Hanway & Co. their promissory note for one thousand and one hundred and seventy three dollars and ninety two cents, due one day after date, on which several payments set forth in the bill were made, and taken into account between plaintiff and said defendant on settlement, and that plaintiff had made several other payments on said note which have not been taken into any account or settlement between him and the said defendant, the receipts for which payments are exhibited with the bill, and on the 1st day of October, 1898, the plaintiff lifted said note by paying two hundred and sixty one dollars and forty three cents, which note so lifted is filed as an exhibit with the plaintiff’s bill; that all the matters of said firm of Zumbro & Smith, up to the date of said suit, have been settled, except said payments made by the plaintiff on account of the litigation concerning the land claimed by said John Bigger, and the payments made by the plaintiff on the said note of Smith, Hanway & Co. since the 6th day of May, 1881; that there are no assets of the firm in the hands of the plaintiff, or of the said William A. Zumbro, or elsewhere, out of which payments to the plaintiff can be provided for, for the amount due him from said Zumbro on account of said several payments, one-half of each of
And plaintiff prayed that the defendants George W. Silcott and Annie E. Barr, and each of them, be enjoined from paying the said Rebecca J. Zumbro or William A. Zumbro (in his own right, or as administrator of H. A. Zumbro, deceased), or any other person, the amount due by said notes, or either of them, and that the said Rebecca J. Zumbro and William A. Zumbro (in his own right, and as administrator as aforesaid) be enjoined from assigning, delivering, or disposing of, to another, such notes, or any part thereof, and from instituting any suit or proceeding to collect the same; that the plaintiff might have a decree against the said Zumbro for the amount due him as aforesaid, and that the amount to become due upon said notes be applied thereon when due; and that the plaintiff' be authorized to enforce the payment of the same by appropriate proceedings in this cause orotherwise, and, if necessary for the purpose, that the said Rebecca J. Zumbro be required to refund or pay to the plaintiff' the amount received by her upon the three notes aforesaid, or so much thereof as might be necessary.
The defendants William A. Zumbro (in his own right, and as administrator of II. A. Zumbro) and Rebecca J. Zumbro demurred to the plaintiff’s bill, which demurrer was overruled, and thereupon the defendants William A. Zumbro (in his own right, and as administrator of ÍT. A. Zumbro, deceased) and R. J. Zumbro tendered and filed their answers to the plaintiff’s bill, putting in issue the matters therein alleged.
The answer of R. J. Zumbro alleges, among other things, that on the 4th day of April, 1898, she assigned and transf
The plaintiff thereupon filed an amended bill, making the said Ida R. Brown a party, and alleging that said assignment was made in furtherance of the design on the part of said William A. Zumbro to hinder, delay, and defraud his creditors, and without any valuable consideration, and alleging that said Ida R. Brown had no money or means with which to purchase said notes. The amended bill was answered by William A. Zumbro, Rebecca J. Zum-bro, and Ida R. Brown, putting in issue its allegations, and the plaintiff'replied generally. Depositions were taken by both plaintiff and defendants.
On the 16th day of June, 1894, a final decree was entered in the cause, directing that the defendant William A. Zumbro do pay to the plaintiff, George S. Smith, the sum of one thousand two hundred and thirty eight dollars and thirty five cents, with interest thereon from the 15th day of June, 1894, together with the costs of the suit; decreeing that the assignment of said two notes for three hundred dollars each, dated May 13,1890, and payable, respectively, on the 13th day of May, 1894, and the 13th day of May, 1895, by William A. Zumbro, administrator of II. A. Zum-bro, deceased, to R. J. Zumbro, and the assignment thereof by her to the defendant Ida R. Brown, were fraudulent, null, and void as to the rights of the plaintiff, and directing that the title and claim of the said R. J. Zumbro and of the said Ida R. Brown to said notes be declared fraudulent and void as to the rights of the plaintiff, and that the plaintiff had the right to receive the amount of each of said notes, and to enforce the collection thereof; requiring said William A. Zumbro, as such administrator, and in his own right, within twenty days, to execute and file a release of the vendor’s lien retained in the deed from John Hamilton, trustee, and others, to George W. Silcott, dated May 13, 1890, to be held as an escrow until the said notes shall have been paid to the plaintiff’, and, upon his failure to ex
The first error relied on by the appellants is as to the action of the court in overruling the demurrer to plaintiff'⅛ bill because the plaintiff’had an adequate remedy at law. This position, however, is not contended for in the appellants’ brief. It is, however, claimed that the bill is multifarious, and that the demurrer for that reason should have been sustained. When, however, the bill is referred to, it is found that it has for its object the settlement of a partnership account between the plaintiff and the defendant William A. Zumbro, alleging that there would be a balance due the plaintiff on settlement; and what is alleged in the bill in reference to the fraudulent assignment ofthe George W. Silcott notes is merely ancillary, and for the purpose of collecting any amount which may be found due on the settlement of said partnership accounts. The settlement of accounts between partners has always been considered as falling within the peculiar province of a court of equity. And, again, we can not regard the bill as multifarious, applying the principles which govern in such cases. In a note to Sand’s Suit in Equity (page 12), after citing 1 Daniell, Ch. Prac. 437; Stuart’s Heirs v. Coulter, 4 Rand. (Va.) 74—it is said: “These cases establish that when the matter demanded against one defendant is separate, distinct, and unconnected with the matter demanded against another defen hint, and neither is atall interested in the defense to be made by the other, the bill asserting these several demands will be considered multifarious, and demurrable for that cause.” Story, Eq. Pl. § 539, says: “The conclusion to which a close survey of all the authorities will conduct us seems to be that there is not any positive, inflexible rule as to what, in the sense of courts of equity, constitutes multi-
The next error assigned and relied upon is as to the action of the court: in setting aside the assignment of Rebecca J. Zumbro to her co-defendant Ida R. Brown, and decreeing the same liable to any debts or demands of William A.
As to the assignment of the notes to Ida R. Brown, it is true that she states in her deposition that she paid a valuable consideration for said notes, without any intention to commit a fraud (in response to leading questions); but when on cross-examination, she is asked to explain what consideration she paid, and how she paid, she replies that the payment was satisfactory to her, and that she has no more to say on the subject. When these facts are taken and considered in connection with the near relation of the parties and the unsettled condition of accounts between the plaintiff and William A. Zumbro, and the large debt owed by said firm to the firm in Baltimore, we can but conclude that the court committed no error in concluding that said transfers were made with intent to hinder, delay, and defraud the plaintiff, and that the said Rebecca J. Zumbro and Ida R. Brown had notice of such intent.
The defendants William A. Zumbro and Rebecca J. Zumbro, in their answers rely upon the statute of limi-tions; and counsel for said defendants in thiir briefs, quote the statute (Code 1891, p. 728, s. 6) which provides
The plea of res judicata is sought to be relied on in the answer of W. A. Zumbro, which is alluded to in the brief of counsel for the appellants, but not insisted upon; and the evidence of any former adjudication is so deficient, and the pleading is so informal, as to prevent us from forming any correct conclusion as to its validity in this case.
It is contended by counsel for the appellants that it was error to decree any sum of money to the plaintiff without first referring the cause to a commissioner, to ascertain what, if anything, the defendant William A. Zumbro owed him. Now, while it is true that in some instances the court may settle an account, and ascertain the balance due, without calling in the aid of a commissioner, yet this cause should have been referred to a commissioner, to ascertain what items of account should have been charged to the defendant W. A. Zumbro. Among other things, he claims that the two tracts of land belonged to the plaintiff', and that he should not have been charged with any of the expenses of the Bigger litigation. In the case of Hinkson v. Ervin, 40 W. Va. 111 (20 S. E. 449) this Court held “that under a bill for settlement of partnership accounts the burden of proof is on the plaintiff, and if he can not furnish
The decree is erroneous in another respect. It bears date on the 16th of June, 1894, and it finds the aggregate due from the defendant William A. Zumbro to the plaintiff to be one thousand, two hundred and thirty eight dollars and thirty five cents, with interest thereon from the 15th day of June, 1894, when the law requires that the aggregate of principal and interest to the date of the decree, and the amount so decreed, shall bear interest from the date of the decree.
For these reasons the decree complained of must be reversed, and the cause remanded, with costs to the appellants.