Harvey v. Dwyer

In the above opinion, I have tried to give the reasons and conclusions of the majority of the court. The discussion in the former opinion, copied in the above opinion, dealt with the status of the case there presented for a joint recovery on the common counts. The notes of Aleshire, Trustee, were out of the case and no recovery of any character could be had on them, for reasons shown in the opinion and crystalized in the first point of the syllabus. The question was upon a recovery upon a promise to pay for benefits received, and the agreement, with the notes of the trustee out of it, showed that benefits received under the agreement were not equal, and that the writing showed that the signers, as among themselves, did not intend to be equally benefited or equally liable. Moreover, the paper, on its face, showed that the property purchased was paid for in certain proportions. The writing showed that Aleshire had purchased the property and had given his notes as trustee, and yet, in another part, it stated that the property was paid for in certain proportions. Payment for property is usually made to the vendor. To whom had the purchase money been paid? The writing was ambiguous as to the liability of defendants under the common counts for benefits received and precluded a joint judgment against them as receiving equal benefits, and so we said that where several undisclosed principals in a land sale have accepted and hold the benefits of the transaction, the extent of their liability under the common counts in assumpsit is to be determined by a proper construction of the written agreement under which they purchased, aided by parol testimony if the agreement be ambiguous. See second point of the syllabus in former opinion. The evidence on this trial, as pointed out in the above opinion, shows that the notes sued on were given by Aleshire, Trustee, for defendants. They were liable for those notes, as much so as if they had signed their names thereon. In the trust agreement, they and their trustee recite that by deed of October 3, 1925, Enslow Park Realty Company had, on the day of that agreement, conveyed to Aleshire, Trustee, the 22 lots, describing them; that he, the trustee, had evidenced the balance of purchase money by the 66 notes, aggregating $25,465.00, payable as provided for in deeds of trust on the lots, and that said notes and deeds of trust were executed by said trustee for said parties acting in their behalf; and that the "assent of said parties is given to the things done by the Trustee." Here we have a clear and concise declaration that the lots were purchased and the notes given on behalf of defendants. Defendants, or some of them, say they never knew that Aleshire had given these purchase money notes until a year after the transaction, and some of them say that they thought Judge Harvey held the notes which they had executed to the trustee. They cannot be heard to contradict their plain writing. No fraud is charged. They all admit that they signed and acknowledged the paper. Ferrell v. Ferrell,53 W. Va. 515. Whatever may have been their understanding respecting their liability as between themselves on the notes executed to the vendor, cannot change the clear legal import of the writings which they executed. The admissible evidence of defendants explains the trust agreement by showing that they "paid for the property" by giving to their trustee 25% cash for the interests of each in the joint adventure, and by giving notes to him at 1, 2 and 3 years for the deferred payments. They went into a real estate speculation by which they jointly purchased land, for a resale, placed it in the hands of a trustee to sell, convey or mortgage the same at such times and prices and upon such terms as he might think for the best interest of all concerned, free from dower and curtesy. There was no conflict in the admissible parol testimony and the ambiguity in the agreement being cleared, the special count setting up the notes being sustained, it became the duty of the court to construe the agreement and so instruct the jury.Watson v. Buckhannon River Coal Co., 95 W. Va. 164. The only doubt I have on the correctness of the court's ruling is because of the evidence of Tom Harvey that he "explained the whole thing" to Judge Harvey before the latter purchased the notes. But on the whole, I would affirm the judgment.

I am authorized to say that JUDGE MAXWELL concurs in this note.