80 W. Va. 443 | W. Va. | 1917
If the procedure and practice in this cause are sufficient to raise them, the three vital questions developed are; (1), whether a copartnership respecting the subject matter of the controversy or a joint interest so far analogous to a relation of copartnership as to make applicable, in the settlement thereof, the principles governing a settlement' of copartnership matters, existed between the plaintiff’s decedent and the defendant S. A. Moore; (2), whether any settlements were made between the parties to such relation; (3), whether, if, in any settlement, the defendant perpetrated fraud upon the plaintiff’s decedent of such 'character and extent as, in law, wholly and entirely vitiates the settlement. The circuit court, regarding the procedure as sufficient, entered upon these inquiries, responded to them affirmatively, by its decree, set aside the settlements found to have been made, and ordered a full and complete accounting. Defense was made under the equitable principle of laches and the statute of limitations. Of the two statements revealed and relied upon as' settlements, the bill specifically attacks only the first. Relying upon the second as being final, complete and conclusive, the
The bill filed by the decedent in his lifetime alleged the existence of a partnership between himself and the defendant, entered into, in 1902, only partially settled and remaining undissolved. It exhibited a statement dated, October 19, 1906, relied upon as a partial settlement, showing assets to the amount of $27,027.39, and an excess of resources over liabilities, amounting to $15,659.24. This statement was based upon books alleged to have been kept by the defendant, and the bill charges that the defendant made, or caused to be made, numerous fraudulent entries and omissions in the books, and that the plaintiff, relying upon the honesty and integrity of the defendant, believing the books had been properly kept and having no cause or reason to suspect the contrary, did not discover the alleged frauds, until a short time before the institution of the suit.
No doubt special plea No. 1, denying the partnership relation, and the pleas of the statute of limitations were intended to operate as companion pleas, reducing the defense to a 'single point, in conformity with the rule applicable to pleas in equity. If there was a copartnership which had not terminated, at the date of the commencement of the suit, the statute had not begun to run against the unsettled part of the account. Code, ch. 104, sec. 6. If there was no such relation,
Manifestly, the matter set up in the third special plea does not constitute ground of a good plea in equity. To determine whether right to relief is barred or lost by reason of the defendant’s inability to produce books, papers, contracts, receipts and vouchers, due to delay in the assertion of the demands set up in the bill, it would be necessary for the court to enter upon inquiries respecting all of the demands, and determine, in each instance, whether the principle of estoppel so operates. Some of the demands might be barred in that way and others not. It would be impossible to say, in any instance, that prejudice has resulted, without consideration of the evidence. In view of this necessitjq it is perfectly appar
The decree of reference-was entered on the bill taken for confessed. That state of the case may have justified entry thereof. Interposition of an answer making full defense, before the order was executed, however, may have made it the duty of the court, in strictness of procedure, to set it aside and postpone the reference until after the introduction of sufficient proof to make out a prima facie case. But the error of the court, respecting the order of reference, if any, is harmless and may be disregarded. The order was purely interlocutory and any error therein suseeptable of correction, in the further progress of the cause. The depositions, whether taken before the commissioner or notaries, were taken for all purposes of the cause and could be considered by the court, in the determination of the issues raised. A premature reference might detract from the value of the commissioner’s findings, but it could have no effect upon the court’s findings upon the evidence brought rip with the commissioner’s report, by exceptions thereto. Some of the evidence in this cause was taken befor'e the commissioner, but numerous depositions were taken before notaries, in the ordinary way, some at Charleston, some at Fairmont and some at Pittsburg. There were exceptions to the commissioner’s report, which brought them all before the court for consideration. If the decree appealed from is sustained by the pleadings and the evidence, any error in the decree of reference, therefore, will be treated as being harmless and disregarded. Seabright v. Seabright, 28 W. Va., 412, syl. point 6.
The extensive transactions as to which a settlement is sought relate to purchase and resales of coal in place and coal lands, in Barbour and other counties, at prices producing very considerable profits, but the operations were attended by heavy expenses and required considerable time for effectuation thereof. They began in 1902, and were very active for a period of four or five years thereafter. Most of the properties were disposed of to J. M. G-uffey of Pittsburg, Pennsylvania. Relatively small holdings of farmers were gathered up and consolidated into large areas, generally under options, and then conveyed to S. A. Moore, trustee, by whom they were conveyed by deed to G-uffev. The aggregate of tlie proceeds of sales made to Guffey was more than $700,000.00, and the total acreage so. disposed of was about 26,230.85 acres. This acreage was made up of several different sections known and designated as fields and tracts. They were the Moatsville Field, 4159.47 acres, sold at $40.00 per acre; the South Phil-ippi Field, 1244.05, acres, sold at $38.00 per acre; the Teters Greek Field, 2932.12 acres, sold at $40.00 per acre; the Henry G. Harris Field, 387.19 acres, sold at $23.00 per acre; Mead-owville Field, 7570.6 acres, sold at $20.00 per acre; the Be-
The general character and scope of the statement exhibited with the bill have already been indicated. Another paper relied upon by the defendant as evidence of a complete and final settlement between the parties, is, in form, a receipt and statement, and bears date, July 23, 1907. By it, Teter acknowledged the receipt of G-uffey’s draft, dated October 4, 1906, and to become due and payable twelve months from that date. Besides this acknowledgment on the part of Teter, it contains a statement of resources, amounting to $18,856.06 and liabilities amounting to $10,586.75. It declares Teter’s ownership of a one-half interest in the assets, its truthfulness as a statement of the affairs of S. A. Moore, Trastee, Teter’s joint interest therein with said Moore and non-existence of any other resources of any kind or character belonging to them jointly or as partners and says it shows a full settlement. More than one-half of the resources consisted of drafts accepted for purchase money of coal sold, one for $5,000.00, one for $1,081.35 and another $3,526.99. The bill does not attack any of the items in the statement of July 23, 1907, but it does not wholly ignore the paper. It admits the execution of the receipt, but charges the defend
The Moatsville Field, the Teters Creek Field and the Mead-owville Field, containing in the aggregate 15,049.38 acres, all lie in Glade and Cove Districts of Barbour County. _ Two other tracts situate in those districts, the England tract of 138 acres and the Holsberry Tract of 99.4 acres, were con-vej'ed to Guffey by Moore. This makes a total of 15,286.78 acres in Cove and Glade districts, the territory contemplated by the written contract of July 25, 1902. The large Meadow-ville Field, 7,570.06 acres, constituted the principal subject matter of the contract between Moore and Guffey, dated, October 11, 1905. In his testimony, Moore admits Teter’s equal interest with him in the Harris Field, Belington Field No. 1, Belington Field No. 2, the Barker District Field and the Fridley Field. All of these fields lie outside of the two magisterial districts named in the contract of July 25, 1902, and contain over 9,500 acres. He admits Teter’s equal interest
None of these exceptions made by Moore are recognized in the statement prepared by Carter, the bookkeeper, and dated, October 19, 1906. That statement is preceded by a caption or letter designating it as a detailed statement of the financial status of S. A. Moore, Trustee, including the resources and liabilities, together with a complete statement of all moneys expended in carrying on the affairs of the said S. A. Moore, Trustee. It also directs attention to a great reduction, since the last report, in both resources and liabilities, due to the turning over of the different coal fields, to the fact that the “Financial condition of the partnership affairs” had “never been in better shape,” and to the profits of Moore and Teter, stated in equal amounts. Though the bookkeeper called the paper a statement detailing the financial status oí S A. Moore, Trustee, he, in the same instrument, speaking of the subject matter of the statement, necessarily, says the financial condition of the partnership had never been in better shape. In that statement, he listed all of the.resources as being joint property. In that part of it which may be treated as a summary of what had been done by the interested parties, he set forth the total sales and the total expenses, without division or apportionment as to properties and an equal distribution of profits up to that date. This statement must necessarily have been based upon the books and it may well be assumed, although it has been proved by the testimony of witnesses, that the expenses were charged against the entire proceeds of sales.
One copy of this statement, with the introductory letter or caption, was delivered to Moore and another to Teter, and each has been preserved. To the copy produced by Teter, there is appended a statement, saying it represents the joint assets and liabilities of S. A. Moore and C. F. Teter as per settlement, and that all the assets represented therein were for the joint use* and benefit of the undersigned. It further
Moore’s denial of Teter’s equal interest in the profits realized from the 3,522 acres of the Moatsville Field, is based upon certain contracts relating thereto. What the history of this portion of the field was, prior to February 19, 1906, is not deemed important! On that day, the Douglass Rausch Coal Company, grantee of the Moatsville Coal Company, entered into a contract with S. A. Moore, by which it bound itself to sell and convey to him, its coal, in consideration of $94,500.00, of which $1,800.00 was paid in cash and the bal-
The Teters Creek Field was covered by the contract of July 25, 1902, and also by the memorandum of October 14, 1905, endorsed on the option contract between Moore and Guffey. In handling this property, it became necessary to organize a corporation known as the Teters Creek Coal Company, and put the title in it. Afterwards, it passed to Moore, and he conveyed it to Guffey, who paid part of the purchase money in drafts. In the statement of October 19, 1906, one of these drafts for $5,000.00 is listed as part of the resources. On the books, Teter was credited with $3,870.56, as part of the proceeds of a draft given for purchase money of this field and Moore’s account was credited with a like amount from the same source. An incident of the transfer of the title from the Teters Creek Coal Company to Moore, was a suit in equity by one O. II. Suck, charging fraud in the transaction, upon the stockholders of the Teters Creek Coal Company, of whom he was one. Teter had been president of the company and Moore a stockholder. Of the stockholders, there were two classes, one known as promotion stockholders, and the other as stockholders who had paid money for their stock. At a stockholders meeting, a resolution was passed authorizing sale and conveyance of the property to Moore, on the basis of $36.00 per acre, as to the promotion stockholders, and $42.00 per acre as to the others; and, on the same day, an optional contract of sale was made. The theory of the bill filed was, that Teter was to receive additional and secret profits out of the transaction. He filed an answer in the cause, denying the charge and any interest in the resale of the property by Moore to Guffey. How the matter was finally adjusted does not appear here, for the suit was compromised and dismissed.
Tested by principles declared in Kyle v. Griffin, 76 W. Va. 214, Krebs v. Blankenship, 73 W. Va. 539, and McKinley v.
A partnership agreement or relation probably could not be inferred from a mere joint purchase, nor from book entries showing a joint interest, with equality in the burden of expenses and losses and in the advantages of gains and profits. Whether it could be established in the manner last mentioned, it is unnecessary to say. The agreements of July 25, 1902 and October 14, 1905, read in the light of the oral testimony and documentary evidence, disclosing the scope and character of the enterprise, the amount of work done and the mode of its accomplishment, go far beyond the conditions and circumstances necessarily disclosed by the book entries. An agreement to get together and consolidate into one body, or into several bodies, small holdings of coal in place, so as to make them marketable, and dispose of the same, and to share the burden and advantages equally must be more than a joint adventure. It does not contemplate a single transaction, but numerous transactions, necessarily extending over a considerable period of time. Though it involves a joint interest and a joint adventure, it is a working contract, in which capital, enterprise and labor are combined for the achievement of profitable results. In this, all of the essential legal elements of a partnership are found, and it does not matter that, in the execution thereof, subsidiary or auxilliary agreements
The documentary evidence of the partnership contract does not contemplate that relation as to any subject lying outside of two magisterial districts, but the actual operations conducted by the parties went far beyond them, and the coal purchased outside thereof was handled in the same way as that contemplated by the original agreement. It was consolidated in the same manner, by the same character of hazard, labor and expense, sold to the same party at about the same time and the proceeds included in a statement of resources and liabilities, with a summary of the total amount of business done. For the transaction of all the business, the same offices, office furniture and clerical help were used, and records thereof kept in the same set of books. The defendant admits that nearly 10,000 acres outside of the two districts were handled in this way and that the interests of the parties therein were equal. The written contract of July 25, 1902, is the foundation of a partnership relation. Though its terms-do not affirmatively go beyond coal in the two magisterial districts, it does not expressly limit the enterprise to that coal. There is not a word in it, forbidding extension of the enterprise to coal in other localities. No rule of law forbids extension of the enterprise by subsequent oral agreement, nor does the addition thereof alter the terms or the contract, within the meaning of the principle. The rule invoked in argument is not infringed by oral proof of a new and distinct agreement upon a new consideration, whether it is a substitute for the old one or an addition to it. Jarrett v. Nickell, 9 W. Va. 345; Shepherd v. Wysong, 3 W. Va. 46; Conner v. Lucus, 13 Gratt. 705; State v. Harman, 15 W. Va. 115; Grant v. Rickards, 2 Gratt. 539. An addition to the
The formal contracts invoked by the defendant, in his effort to exclude from the partnership enterprise, a large part of the Moatsville Field and all of the Teters Creek Field, are not necessarily inconsistent with the trial court’s findings. The contract relating to the former does not, by any express terms used determine anything between Teter and Moore, as to any excess of sale price over $33.00 per acre. They were partners. Hartley had no connection with the firm, but he had an interest of some sort in this particular field, or some hold upon it. The contract of purchase was made in the name of Moore, as were all the others. Manifestly, the purpose of the agreement signed by Moore, Teter and Hartley was the determination of Hartley’s interest in the proceeds of the contemplated sale to G-uffey, and that sale must then have been in reasonable prospect, for the conveyance was made about three months afterward. The coal lay within the territory of the original partnership agreement and there is evidence of an equal division of the proceeds of sale on the books.
The Teters Creek Field was also' in that territory, and there is evidence of an equal division of its proceeds on the books and of a charge of losses sustained thereon, in the ledger. The contract of purchase was made in the name of Moore, and he took the title temporarily, as in other cases. It was not held long, for Guffey got it in June, 1906, and the optional contract of purchase was made in March of that year. How long Suck delayed consummation of the transaction, does not appear. Nor is Teter’s admission judicially made in the suit instituted by Suck conclusive. 16 Cyc. 1050, citing numerous authorities. It was made for the purposes of that suit, which was not one involving any controversy between these parties. The circumstances and documentary -evidence here disclosed and produced disprove the truth of the admission made in that suit.
It is not necessary here to inquire and determine whether
The defense of laches is not well founded. The bill alleges ample reason and excuses for delay, and there is no proof of such loss of books and papers or death of witnesses, as materially interferes with or embarrasses the determination of the issues of fact raised by the pleadings. Practically all of the books, papers and contracts are produced, and it does-not appear that any material witness is dead except C. P. Teter, and he brought the suit in his lifetime.
As to any settlement made, the statute of limitations runs from the date thereof and bars any item or matter included therein after five years, whether effected or induced by either fraud or mistake. To reach such a matter either at law or in equity, there must be allegation and proof of facts sufficient in .law to bring it within the exception provided by sec. 18, ch. 104 of the Code. Foster v. Rison, 17 Gratt. 321; Newberger v. Wells, 51 W. Va. 624; Thompson v. Whitaker Iron Works Co., 41 W. Va. 574; Whitaker v. Improvement Co., 34 W. Va. 217; Paxton v. Paxton, 38 W. Va. 616; Jackson v. Hull, 21 W. Va. 610; Vanbibber v. Bierne, 6 W. Va. 168. The bill does not, in terms, allege concealment of the alleged frauds, nor obstruction of the right of action by any act done by the defendant after the perpetration of the frauds; but it sets forth facts sufficient to make out a case of concealment and obstruction. It says the defendant was the custodian of all the books, and charges him with having made entries in the books, of large sums of money, as having been paid out for expenses, which Avere never actually paid, and for payment of which there was no obligation on the part of the firm. It further charges that Teter, relying upon the honesty and integrity of his associate, made no investigation of the books, for verification of the two statements, and did not suspect the existence of the alleged frauds, but that, within
Included in the item, “Commissions Paid, $106,671.12,” of the statement of October 19, 1906, and entered on the books, are three charges of commissions, as having been paid to J. S. Willard, W. P. Johnson and Willard and Johnson, respectively, the first being $11,199.63, the second $5,552.58 and the third $2,002.32. These men were agents of Guffey, Willard being his office and confidential man. He swears no such sums or any other amounts, were ever paid to him or to him and Johnson. Another agent, J. W. Hair, was authorized by Guffey to take commissions on coal purchased through him and some of his commissions were retained for him by Guffey in the settlements. According to Willard, those so retained amounted to $14,145.48. Moore does not claim the three sums
Moore’s answer not only renders this testimony inadmissible, but also deprives it of any probative force in so far as it purports to say Moore had right to retain the commissions. The answer avers the payment of all this money to Hair and the respondent’s ignorance of the course of the transaction between Hair and Willard and Johnson, and as to what settlement was made between them, if any. It amounts to a clear and distinct admission, in a sworn answer, that the respondent did no1 retain the commissions in question, as having been allowed or given to him by Teter for extra services oi' other consideration. It is a judicial admission made
Teter’s knowledge of the entries in the names of Willard and Johnson gave no notice of any fact sufficient to put him upon inquiry. These funds were in Moore’s hands, as well as practically all others, and he made practically all of the disbursements for expenses, as well as contracts entailing expenses. Seeing these entries, if he saw them, Teter had right to assume their genuineness and rely upon it, in the absence of knowledge of any fact tending to prove lack of a basis therefor. His examination of the books would not disclose non-payment of these large sums of money. On the contrary, the entries represented that they had been paid and, therefore, they obscured and concealed the true situation and misled him. They told him in plain terms over $18,000.00 had gone to these men, when, in point of fact, Moore had paid them nothing. This amounted to a retention of them by means of a false entry in the books.
The answer denies that the defendant kept all the books and there is evidence tending to prove Teter had access to them and directed entries to be made therein. During part of the period in which their enterprise was actively prosecuted, Moore seems to have done the bookkeeping, but, later, W. H. Carter was employed to keep them. The office rooms were three in number, Teter occupying one, Moore another and the bookkeeper and stenographers the third or middle room. .It may well be assumed that Carter made entries at the instance and upon the direction of each, but this does not prove notice to Teter, of the lack of foundation for the entries in question. As Moore was paying the commissions, directions
The trial court found fraud on the part of Moore, respecting a credit of $5,000.00 to himself, on the books, for extra services rendered or work done, in the consolidation and sale of one of the coal fields. The answer avers, and Carter testifies, it was the Meadowville Field. Witness Robinson says it was the Teters Creek Field. As this item appeared on the books and Teter had access to them and at least two witnesses say he frequently examined them, and another, that he declared he had examined them, the proof does not make out a case of obstruction to right of action, within the meaning of see. 18, ch. 104, Code. If the entry was fraudulent at all, it was not of such character as to work any concealment. Moreover, diligence on the part of Teter would have disclosed it. Deeming Moore not entitled to this sum, for lack of a special contract for extra services, the court below seems to have regarded his lack of right to the credit and the unauthorized entry, sufficient to establish fraud. The authorities do not sustain this conclusion.
The establishment of fraud in the charges made on the books and carried into the settlements, as for money paid on account of commissions, vitiates the entire settlement and calls for a restatement of the account in toto, and, upon this theory, the trial court properly referred the cause to a commissioner for that purpose. Daniel v. Gillespie, 65 W. Va. 366; Allfrey v. Allfrey, 1 Mac. & G. 87; Williamson v. Barbour, 9 Chy. Div. 529; Gething v. Keoghley, 9 Chy. Div. 547; Lindley, Part. 969; Col. Part. sec. 298. Failure of one of the grounds upon which the decree is based, does not necessitate reversal, one instance of fraud being as efficacious as two or' more. In addition to the two items here considered, numerous others are attacked by the bill, but the trial court made no finding as to them.
Carter was introduced as a witness for the' plaintiff, but was not interrogated by him, as to his authority for making the $5,000.00 entry, just, mentioned. On cross-examination, he testified that he had made it by direction of both Teter
There was technical error in the rejection of the special pleas based on the statute of limitations, but, as the same defense was set up generally in the answer, the error is harmless and does not necessitate reversal of the last decree entered, settling the principles of the cause.
The trial court erred in sustaining an exception to a portion of Moore’s answer, setting up a right of contribution from the firm for one-half of large amounts paid by him, in discharge of his liability as a joint endorser with Teter, of Guffey notes and drafts taken as part consideration for coal conveyed to him, and striking it out. The right of a partner to resort to the firm for contribution for discharge of its debts, or for enforced discharge of its obligations, is not a debatable question. Koelz v. Brinkman, 50 W. Va. 270, 279; Morris v. Morris, 4 Gratt. 293; Bates, Part. sec. 759; Collyer, Part. p. 491, sec. 325. If the averments of the answer are true, the partners have right of recourse upon the firm. It is assignor and they are its assignees, and an assignor guarantees that the assignee shaR receive the full amount of the bond or note assigned, if he fails to collect the same by the
There is a suggestion of justification of the action of the court, in the elimination of this part of the answer, on the ground of Moore’s assertion of the demand set up in it, in another suit pending for settlement of Teter’s’ estate. Being a partnership liability constituting a factor or element in the partnership settlement, it cannot be excluded from this suit on that ground.
As this error pertains to the basis of the accounting and not the right to an accounting declared by the decree of Jan’y. 23, 1915, it does not call for reversal of that decree.
For the reasons stated, the decree of May 2, 1913, will be reversed and set aside in so far as it rejected special pleas Nos:‘ 4, 5, 6, 7, 8, 9, 10, 11 and 12, and struck out that portion of Moore’s answer, which asserts firm liability to him, on account of payment of obligations jointly endorsed by him and Teter, and the decree of January 23, 1915, will be affirmed -and the cause remanded.
Reversed in part. Affirmed in part. Remanded.