73 W. Va. 228 | W. Va. | 1913
A. C. Wiley recovered a judgment against S. P. Martin and Lizzie Martin his wife for $198.90, in the circuit court of
The action is upon two notes for $113.00 each, executed by Martin and wife to Wiley and payable, respectively, in six and twelve months from date. Martin owed the Princeton Brick & Lumber Company $226.00, and Wiley was its stockholder 'and creditor, holding its note for $2,120.00, which was past due at the time Martin and wife executed their notes to Wiley. Said company was thought to be insolvent, and Wiley, being anxious to realize as much as possible on his claim against it, agreed with Martin that, if he would execute to him his notes, with his wife as surety, he (Wiley) would assume the payment of his debt to the corporation. It was not a party to the agreement. On receiving Martin’s notes, Wiley immediately indorsed their amounts as a credit upon the note held by him against the corporation, but gave it no notice thereof. Martin and Wiley agree in their testimony, that the notes were given in consideration of Wiley’s assumption of Martin’s debt to said company. Wiley made the following indorsement upon each of the notes at the time they were executed, viz.: “If the Princeton Brick and Lumber Company should collect the within amount, then I will give up this note without collecting.” Even if it could be assumed that the company knew of the agreement between Martin and Wiley, it certainly did not acquiesce in it, for it assigned .the Martin debt to W. B. Tlonaker and others, who brought suit thereon before a justice of the peace and recovered judgment against Martin for $225,78, on the 17th April, 1911, he failing to appear and make defense. The present suit was instituted before the same justice two months later. But, before bringing it, Wiley purchased the aforesaid judgment for fifty cents on the dollar, took an assignment of it and executed and acknowledged a release thereof, and, at the trial, tendered it to defendant unconditionally. There is.no conflict in the. testimony as to any material fact, and but two legal questions are discussed in brief of counsel for defendant: (1) that the agreement between Wiley and Martin was in fraud of the rights of creditors of the Princeton Brick & Lumber Company, an insolvent corporation, and the notes are, therefore, void;
Regarding the second proposition, there is no evidence whatever to support the contention that Wiley was Martin’s agent. Not being his agent to pay his debt, he can not complain because Wiley discharged it by paying fifty cents on the dollar. The judgment is affirmed.
Affirmed.