Hoeveler v. Mugele

The opinion of the court was delivered, January 3d 1871, by Read, J. — This was an action to recover the sum of $2285.72 with interest, upon a bond executed by the defendants, promising to pay that amount to the decedent, it being in full payment for the purchase of 600 acres of land, on the east side of Cheat river, below Rowlesburg, in Preston county, West Virginia, this day conveyed to us by him. It is dated the 7th November 1865, and the defence shows it was a part of a plan to organize an oil company, and the defendants offered parol evidence of what occurred between the parties at and immediately before the execution of the instrument. This was objected to by the plaintiffs, but the learned judge admitted the testimony, and sealed a bill of exceptions. • [350] The evidence thus admitted showed that Augustus Hoeveler, being the owner of 600 acres of land on the east side of Cheat river, in Preston county, West Virginia, proposed to the defendants the organization of the “ Pittsburg Lumber, Oil and Mining Co.,” with said land and other lands of the defendants as a basis, and for that purpose, and preliminary to said organization, to convey his land to defendants for said company, at the nominal consideration of $6000, payable as follows, viz.: $3714.28 in stock, and the residue, $2285.72, in cash, when realized by sale of stock to outside parties ; and in case the stock could not be sold, then Hoeveler was to look to the products of the land, to wit, timber, lumber, &c., to be obtained from the land, and in the meantime the defendants were to give their note for said sum of $2285.72 as a voucher for amounts to be paid, and because there were no officers of the company to issue such obligation. The defendants also agreed to take stock for their lands, and all the parties were to share in the profits, according to their pro rata interest in their adventure. The company was organized and chartered, mills erected, and other things done in furtherance of the common object; but they were unable to sell sufficient stock to pay the Hoeveler note, and evidence was given tending to prove that the failure was attributable to the default of Mr. Hoeveler. This evidence was clearly admissible, and to have excluded it would have been permitting the commission of a fraud upon the defendants. The jury found a verdict for the plaintiff, with this restriction : “the lien and execution of any judgment upon this verdict, to be restricted and confined to the proceeds of sales of shares and products of the lands, of the Pittsburg Lumber, Oil and Mining Co., situate in Preston county, West Virginia, and, in default of payments thereof out of such proceeds and products, then to the said lands of said company,” following the memorable examples of Aycinena v. Peries, 6 W. & S. 243; Irwin v. Shoemaker, 8 Id. 75. This verdict was perfectly right, and in entering judgment upon it the court committed no error. Judgment affirmed.