61 W. Va. 65 | W. Va. | 1906
This is a writ of error to a judgment of the circuit court of Kandolph county, rendered in an action wherein E. D. Wamsley was plaintiff and Lina A. Ward was defendant. The plaintiff filed with his declaration an affidavit, claiming the sum of three hundred and fifty-two dollars and •eleven cents’ to be due to him from the defendant. The defendant, over the objection of the plaintiff, was permitted to plead an offset of three hundred and eighty dollars, which plea was verified by affidavit, and upon which issue was joined. On the trial, after all the testimony had been introduced, the plaintiff demurred to the evidence. Thereupon the jury returned an alternative verdict, finding the sum of three hundred and seventy-six dollars for the plaintiff if the law upon the demurrer be for him, and if not, then finding for the defendant in the sum of forty dollars and eighty cents. The judgment upon the demurrer was for the defendant.
The plaintiff assigns two grounds for reversal: First, because Minerva Wamsley, as administratrix of the estate of J. S. Wamsley, deceased, had no right to assign the assets in her hands to be administered; and, second, because the plaintiff was indebted by open account to the said Minerva Wamsley as such personal representative in an amount largely in excess of the amount of the order hereinafter referred to, and that an assignment of a part only of such fund, without his consent, or acceptance of the order, could not be enforced in a court of law. We will not dispose of the first ground assigned. It is unnecessary to do so, because a disposition of the second assignment is conclusive of the case. It appears from the pleadings, and also from the evidence, that the set-off relied upon is an order •drawn by Minerva Wamsley, administratrix, on the plaintiff, and in favor of the defendant, for the sum of three hundred and eighty dollars, and that the plaintiff, at the time •of the giving of the order, and filing of the plea, was indebted to Minerva Wamsley, administratrix, in a sum largely in excess of the amount of the order. It does not appear that the plaintiff assented to the giving of the order, nor
The judgment of the circuit court is reVersed, and judgment entered for the plaintiff, but without prejudice to the right of the defendant to institute such proceeding as she may be advised is proper for the recovery of her claim relied upon as an off-set in this action.
Reversed. Judgment for Plaintiff.