Kent, Paine & Co. v. Chapman

Green, Judge, announced the opinion of the Court: The first point in controversy in this appeal is the amount due on the plaintiffs’ judgment, which they have a right to enforce in this suit. The commissioner made his report of this amount, first by calculating it on the basis of the original judgment of the plaintiffs, afterwards he made a report on the basis of the judgment or award of execution on the forthcoming bond given by the parties. This latter was clearly right; and it was adopted by the court. On this basis the amount due the plaintiffs is $1,234.20 with interest thereon from December 12, 1859, until paid and $4.13 costs. Is this subject to any abatement or credit? Was it liable to be reduced by abating the interest during the war? This abatement the circuit court allowed by the last clause in the decree of May 5, 1874; but in making this abatement the court erred. The plaintiffs resided in Richmond, Virginia; the defendants in Mercer county. If these territories had been engaged in the war against each other, this interest ought to have-been abated (McVeigh v. The Bank of the Old Dominion; Brown v. Hiatts, 15 Wallace 177); but these territories were not engaged on opposite sides in the war. It is true Mercer county was from the formation of this State within the boundaries of this State, and this State was engaged in the war on the opposite side to the government of Virginia at Richmond ; but the jurisdiction of this State was never during the war extended over Mercer county, it re — 501 — mained under the jurisdiction of the government of Virginia at Richmond. Of this fact this Court can take judicial notice. Simmons v. Trumbo, 9 W. Va. 358. Interest should therefore be allowed on the debt during the war, as was held to be right and actually done, where the parties resided in Greenbrier county, in the ease of Jarrett’s ' adm’r v. Ludington, 9 W. Va. 333. It was contended, that the plaintiffs’ judgment should be reduced to $521.19 with interest and costs, because there was improperly included in it by mistake or fraud a debt of $596.29, which was not- a debt of the firm of Baileys & Chapman, against whom the judgment was rendered, but an individual debt of A. R. Chapman; and he filed an answer in the nature of a cross-bill asking this correction of the judgment. But the circuit court was of opinion as appears by the decree of May 5, 1874, that “ Baileys & Chapman had slept too long upon their rights, even if there was a mistake or error in the rendition of the judgment at law, to ascertain at this late date by the memory of witnesses the true facts.” It therefore refused to entertain this complaint and dismissed so much of the answer of A. A. Chapman, as was in the nature of a cross-bill, and denied the relief prayed for. The court not only did not err in this, but might well have added, that the evidence showed, that there was no mistake or fraud in the rendition of the judgment for the amount, for which it was rendered. A credit was also claimed for an amount of money collected by the attorneys of the plaintiffs on certain claims of the defendants, which had been left with the clerk by one of the defendants with directions, to have writs issued on them for collection by suit, and .witRdireclious, that they were for the use of the plaintiffs, and that the names of the plaintiffs’ attorneys should be marked to the suits. The evidence shows, that this was done without any previous agreement of these attorneys to receive these claims on the plaintiff’s demand either as collateral security or in satisfaction pro tanto of their demand; and the money, when collected, was by the direction of one the defendants applied to the payment of other demands against Baileys & Chapman. Attorneys at law employed to collect a debt may receive payment thereof in money, but — 502 — they have no authority to accept notes or bonds either in satisfaction or as collateral for the debt without express authority from their client. See Wiley v. Mahood et al., 10 W. Va. 206. It is clear, that the court below did not err in refusing to allow this credit on the plaintiffs’ judgment; for in this case there was not only no such authority, but they were not so received by the attorneys, though originally intended to be so applied by one of the defendants, and they were actually afterwards with the approbation of defendants applied to other demands against them.' No other abatement or credit was claimed on the plaintiffs’ judgment. The next point in controversy is : Whose lands ought to be primarily responsible to satisfy the plaintiffs’ judgment? It is insisted by appellants’ counsel, that it was the duty of the court in this cause to have had the partnership accounts of Baileys & Chapman settled, and if it should appear, that one of them, say Chapman, was on this settlement indebted to the others in an amount exceeding the judgment, that the court should have rendered a decree making the lands of Chapman first responsible-for the payment of the plaintiffs’ judgment, and for the balance due from him the court should have rendered a decree in favor of the other defendants against Chapman. The case of Vance v. Evans, 11 W. Va. 342, is relied on to .sustain this position. It was there decided, that a decree between co-defendants can only be based upon pleadings and proofs between the complainant and defendants; but where a case is made .ouf between defendants by evidence arising by pleadings and proofs between complainant and defendants, a court of equity should render a decree between the co-defendants. The character, of the cases, which come within this rule, is well illustrated by the case of Templeton v. Fauntelroy, 3 Rand. 434, also relied on by appellants’ counsel. It was there decided : “When a foreign attachment is sued out against an absent debtor and a resident garnishee in a case equitable in its nature, it is competent to the court of chancery to decree between the debtor and the garnishee, what may be due from the latter to the former after satisfying the claims of the plaintiff. But the evidence in such cases must arise from the pleadings and proofs between plaintiff and defendants.” — 503 — What is meant by this qualification is shown by Judge Carr’s opinion on page 442. If the garnishee had admitted, that he owed the non-resident more than enough to pay the plaintiff’s demand, when it was established, the court would at once have decreed, that it be paid, and this is all it ought to have done, and if the non-resident defendant had asked the court to go further and settle the accounts between him and the garnishee in that cause, the court would have refused to grant such request, because in such a case there could properly be no decree rendered between co-defendants, because the claim of the non-resident to this balance could not in the case put depend on evidence, which arose from the pleadings and proofs between the plaintiffs and defendants. No evidence at all was necessary to sustain the right of the plaintiffs after his claim was established to the decree against the garnishee therefor, as the garnishee admitted his liability thereto, and this was all that was necessary to entitle the plaintiff to the relief he asked. JButif the garnishee had made no such admission, but had only admitted, that there were unsettled accounts between him and the non-resident defendant, the’court, in order to en-quire into the right of the plaintiff to the relief he sought in the bill, would necessarily have had to settle the accounts between the garnishee and non-resident defendant; and if on such settlement the garnishee was found indebted to an amount exceeding the plaintiff’s debt, this excess, the balance due to the non-resident defendant, w'ould be decreed to him. In such a case the court would properly render a decree between co-defendants, because on the evidence necessarily brought into the cause, in order to enquire into the plaintiff’s right to the relief he sought, it is proven, that this balance is due the non-resident defendant; and it having been necessarily and properly ascertained on the pleadings in the case between the plaintiff and defendants, the court should, to avoid further unnecessary litigation, decree that the balance due to the non-resident defendant should be paid by his co-defendant, the garnishee. In the cause before us the plaintiffs were .entitled to the relief they sought upon establishing their judgment and that of others against the defendants. They had then a right to subject the lands of all the defendants in their judgment to — 504 — its payment. It was a matter totally immaterial to their claim, which of the defendants iu their judgment was liable on the settlement of their partnership-accounts to the other, so that the settlement of this partnership-account was in no manner necessary on the pleadings between the plaintiffs and defendants; and therefore the defendants in such a case are not entitled to any decree the one against the other, and these partnership-accounts ought not to be settled in this cause. But it does not from this follow, if on the facts admitted by the defendants the lands of some of them are primarily liable to the plaintiffs’judgment in whole or in part, that the court ought not to so declare and decree. Just as where the plaintiff has a lien on the lands of a principal and his surety, the court enforces the lien by the sale first of the principal’s lands and then, if they be insufficient, by a sale of the surety’s land. In this case the articles of co-partnership, admitted by all the partners in the firm of Baileys & Chapman, render Chapman primarily liable for two thirds of the partnership-debts and the Baileys each for one sixth. It is true, that a settlement of the partnership-accounts might show, that Chapman had already paid two thirds of these debts; but such settlement cannot, for the reasons we have stated, be made in this suit; and prima facie he ought to pay two thirds of the plaintiffs’ debt and all other debts against the firm. The court therefore without enquiring into the equities between the co-defendants ought to have decreed the lands of Chapman to be first sold to pay two thirds of the plaintiffs’ debt, and the lands, which had belonged to each of the other partners and liable to this judgment-lien, should be sold, each to pay one sixth of the plaintiffs’ debt; and if any of them should prove insufficient to pay their share, it should be made out of the lands of the other. The appellants claim, that as it is proven in the case, that more than half of the plaintiffs’ judgment was based on a claim against A. A. Chapman alone, though the judgment was by agresment of parties rendered against all the members of the firm of Baileys & Chapman, the lands of Chapman ought to the extent of his individual debt included in this judgment' to be for that reason held primarily liable for its payment. — 505 — On. the other hand Chapman insists, that the evidénce shows, that on their partnership transactions the other members of the partnership owe him much more than the amount of his individual debt included in the 'plaintiffs’ judgment; and the court below evidently so thought. But it is obvious, that we must regard the plaintiffs’ judgment as a debt due from the partnership, though out of it may arise an equity •in the partners other than the one in the settlement of the partnership-accounts, to charge Chapman with' his individual debt included in their judgment. But as the court for the reasons above stated properly declined to go into the settlement of this partnership-account in this cause, it was obviously its dnty to decline to take out this one item of the partnership-account, and say it prima fade made Chapman liable to his co-partners, and- therefore it would charge his lands with a larger portion 'of the plaintiffs’ claim, than it would otherwise be liable to. For like reason it was improper in the court, while declining to settle the partnership-accounts, to assume that the evidence,’ which had been adduced, probably would show, that the Baileys would be indebted to Chapman on such a settlement, and therefore their lands should be charged with a larger amount of the plaintiff’s debt primarily, than they otherwise would have. been. With these equities between the co-defendants, the partners in the firm of Baileys & Chapman, the court in this cause had nothing to do. Chapman’s lands should have been held liable primarily to two thirds of the whole of the plaintiffs’ debt; and the lands of each of the other partners respectively should have been held liable primarily to one sixth of the whole of the plaintiffs’ debt. The whole of the decree of May, 1873, is therefore erroneous, excepting this portion of the same : “On this 6th day of May, 1873, this cause being called, the defendant, A. A. Chapman, tendered his amended answer herein, to the filing of which the plaintiffs by their counsel objected, and the court having overruled the objection permitted the same to be filed upon the condition, that the defendant would consent, that the plaintiffs may file their replication to said amended answer within sixty days, to operate as if filed of this day, and consent is given; and thereupon the plaintiffs demurred to — 506 — said amended answer of said A. A. Chapman so filed, and the defendant Chapman joined in the demurrer, and the same being argued the court doth overrule said demurrer.” If there be error in this part of the decree, it is not prejudicial to the appellant, and it ought not to be reversed. The rest of the decree is erroneous and prejudicial to appellant and must be reversed. It assumes, that the court may properly decree defendants’ land to be sold, before the amount of the plaintiffs’ claim is ascertained; and it decides, that the lands of certain of the defendants are primarily liable in violation of the principle we have stated. The decree of May 5th, 1874, is correct, so far as it dismisses so much of the answer of A. A. Chapman, as is in the nature of a cross-bill, and denies the relief therein prayed. So far as is shown by the record, that portion of the said decree, which sets aside the sale of land to John W. Smith and directs the cash payments made by him to be refunded, is not erroneous, and should be confirmed. The residue of the decree is very difficult to comprehend, and is complicated with the decree of May 6th, 1873, the principles of which, I presume, are intended to be carried out, and so far as I can comprehend, it does not fix the primary liabilities of the lands of the defendants to the plaintiffs’ judgment .in the manner we have indicated to be proper; and the final clause in this decree directs certain interest on the plaintiffs’ claim to be abated, which, we have seen, is not proper. For these reasons ail of said decree except the portions, which, we have said, were not erroneous, should be reversed, and a proper decree shoud be entered by this Court; and the appellant should recover of the appellee, A. A. Chapman, his costs in this Court expended; and this cause should be remanded to the circuit court of Mercer, to'be there proceeded in according to the principles laid down in this opinion, and further according to the principles governing courts of equity. Judges HaymoNd and Johnson Concurred. Decree Reversed. Cause ReMANded.