Peyton v. Stuart

Lacy-, J., delivered the opinion of the court. The hill was filed hy the appellee, William A. Stuart, on the 28th of December, 1886, wherein it is set forth that on the 14th day of September, 1882, the “ Greenbrier White Sulphur Springs Company,” a corporation duly incorporated under the laws of the state of West Virginia, made its certain negotiable note in writing, hy which it promised to pay, thirty days after the date thereof, at the Bank of Lewisburg, West Virginia, the sum of $4,000 to William A. Stuart, George L. Peyton, and IT. M. Mathews, as joint endorsers; that said note was duly protested for non-payment when due, according to law. Another note, like the foregoing, for $2,000; and another for $7,500, like the foregoing — curtail and discount on this note of $2,605; another note for $5,000 — curtail and discount on this of $995.43, and $4,148.05 paid on this note. That all these notes were protested, and not paid by the said “ The Greenbrier White Sulphur Springs Company,” nor by George L. Peyton, nor hy the said TI. M. Mathews, but by the said William A. Stuart; that the maker of these notes, the said “ The Greenbrier White Sulphur Springs Company,” is insolvent, and so is II. M. Mathews, and that George L. Peyton is, as joint endorser with him, bound to pay to him one-half of the money so paid hy him, the said William A. Stuart, and that when judgment had been obtained on this indebtedness, and liens secured on the land of the said George L. Peyton, that he, the said William A. Stuart, is entitled to he subrogated to the rights of the creditor as against the said George L. Peyton. . On the 7th of December, 1886, the circuit court of Augusta rendered a decree for the following account: 1st. As to the solvency or insolvency of the Greenbrier White Sulphur Springs Company. ' ■ 2d. As to the solvency or insolvency of the estate of Henry M. Mathews, deceased. — 52 — 3d. What amount is due the plaintiff from his joint endorsers for contribution upon the notes filed with the bill, or upon said judgment filed with the bill, or is due said plaintiff' from such of said endorsers as may be found to be solvent. And leave was given the said George L. Peyton to file his answer in this cause in sixty days thereafter, which was done accordingly. The said George L. Peyton filed his answer, saying that, while he had no independent recollection on the subject, he supposes it is true that the notes described in the bill were executed by the said “ The Greenbrier White Sulphur Springs Company,” and endorsed jointly by the complainant, the said respondent, George L. Peyton, and the said H. M. Mathews, as alleged, and that originally said Stuart, Mathews, and respondent were jointly and equally bound by said endorsement. Respondent, did not. know, and.called for proof, of any alleged payments made on these by said William A. Stuart. That it is admitted that H. M. Mathews is dead and insolvent; but respondent denies the insolvency of the said “ The Green-brier White Sulphur Springs Company,” and the statement that nothing can be made out of it; that so far from being insolvent, that it is possessed of a large amount of good and solvent assets, sufficient to pay all or within a small fraction of its liabilities ; that these assets consist of unpaid stock subscriptions, the purchase price of mortgage bonds sold, and of unencumbered real estate, personal property, &c., and that the said complainant is himself indebted to the said company in a sum not less than $94,000 for unpaid stock subscriptions and for bonds of the company' bought and not paid for, and that the charge of insolvency comes with a bad grace from him, the said William A. Stuart; that the said Stuart had not been compelled to pay these notes held by him as security for the maker, but had acquired them by purchase at a discount of fifty per cent., and that at the time of the purchase he was legally indebted to the company, and when he acquired the note the — 53 — debt became extinguished. That the said Stuart cannot call on the respondent for contribution, because payment has been provided for by placing one hundred and ninety of the mortgage bonds at the par value of $500, that have been deposited with the cashier of the creditor bank as collateral security therefor, and that the said collateral should be exhausted before one of the securities should be held liable for them. That, independently of the cpiestion whether the Greenbrier White Sulphur Springs Company is or is not solvent, and of the question whether the said notes or a part of them are or are not secured in other ways, to the exoneration of the said George L. Peyton, the said George L. Peyton denies that there is now any liability on him to the said William A. Stuart on account of the said notes in the said bill described. On the contrary he claims that on account of a contract, and agreement to that end, made by the said William A. Stuart, he has been released from all liability for these joint endorsements; that the notes in question were given by the said company for the purpose of raising money to make improvements on the property owned by it, and when endorsed by the said William A. Stuart, Henry M. Mathews, and George L. Peyton, as accommodation endorsers, they being all large and equal stockholders in said company, the money so obtained was used in the improvement. and in the furnishing of the property of the said company, and on the basis of improvement so made a large amount of the stock of the company was issued as full paid stock. On the 4th day of November, 1882, George L. Peyton held $37,500 of the stock of the said company, for which he paid in cash the sum of $17,500, the balance of it being issued in consideration of betterments and improvements placed on the property, and for the payment of which notes of the company were outstanding and unpaid, endorsed by the parties interested in the company. In this state of affairs, and on the said 4th day of November, 1882, George L. Peyton sold to William A. Stuart all of — 54 — his said, stock, on the distinct understanding and agreement that said stock was sold on the basis of cost, and that the said George L. Peyton was to be relieved of all liability, as endorser or otherwise, for the debts of the said company, said Stuart agreeing to return to Peyton all of his paper, including interest and discount paid. That said agreement was reduced to writing, as follows : “ Richmond, Va., Nov. 4th, 1882. “ I have this day bought of George L. Peyton his stock on the basis of costs and $5,000. I am to give him up his paper, including discount and interest paid, and pay Dr. Moorman about $4,000, and enough in addition to make $5,000. Said Peyton is to have his salary on the first of January, so far as it has not.been realized from the company, after taking from his account and charging back to said Stuart any board-bill to said Stnart or his family which has been charged to said Peyton. Said Peyton is to throw no obstacle in the way of said company regaining or holding possession of their property, and release any claim I have to any of his salary. And any amount I pay said Peyton on his salary I am to hold as a debt against the White Sulphur. [Signed] “William A. Stuart.” That the stock sold, as set forth above, on the 4th day of November, 1882, to said AWlliam A. Stuart, was delivered to him, and has been converted to his own use; that under this agreement it was the duty of the said William A. Stuart to pay and take up the said note, on which Peyton was an endorser, to the exoneration of said Peyton, and that there is no liability on said Peyton on account of any of the said notes in the hands of the said Stuart, and the said Stuart has no just demands against the said Peyton for contribution on account of their joint endorsement of the same. — 55 — Under the decree of December 7th, 1886, J. V. Green Smith, one of the commissioners of the circuit court of Augusta county, undertook to take the testimony, state the account, and make the report required by the said decree. His report is returned on the 16th day of April, 1889. He says that he gave notice as required by the decree, and on Saturday, the 5th day of February, 1887, at his office in the city of Staunton, being the time and place fixed by said notice, he proceeded to take the account ordered by the decree, but that, not being completed on that day, he adjourned the taking of the same from day to day from that day to the day of making his report — that is, from the 5th day of February, 1887, to the. 16th day of April, 1889, he adjourned the account from day to day; so that for more than two years he adjourned this account from day to day. ■ On the first account he reported that the White Sulphur Springs Company was insolvent. On the second, that the estate of Henry M. Mathews, deceased, is insolvent. On the third branch of the decree, as to what amount is due the plaintiff from his joint endorsers for contribution, he has much to say, which must, under the contention here involved, be carefully considered. He says on the threshold that, before proceeding further, the commissioner- would here state that there are now pending before him for settlement and report four several cases — three chancery and one common law— instituted by William A. Stuart against George L. Peyton, in which said Peyton sets up a line of defence common to all four of said cases, which, if sustained, will defeat the said Stuart out and out as to the said Peyton, and it has, therefore, been agreed between counsel of said Stuart and Peyton, respectively, that your commissioner, in order to save time, repetition, and expense, may, in this one suit of William A. Stuart v. George L. Peyton, dispose of all matters as between Stuart and Peyton, making mere naked findings as to Peyton in the -other — 56 — three cases, and referring to this report for his reasons therefor. So that, by agreement of the parties by counsel, this suit was considered and heard by the commissioner and bj' the court, which approved and ratified this report in all respects, together with three others, all four depending upon the same question, so that the decision of one is the decision of all four. We will now, from the said report, see what these four cases are. The first named is the one we have already stated at considerable length. The second suit is, as the commissioner, Smith, states in this report, by the agreement aforesaid, as follows : In the chancery cause of William A. Stuart v. Lancaster & Co., the plaintiff, Stuart, set up for contribution as against the defendant, George L. Peyton (to say nothing here, says the commissioner, of any contention from his co-defendant, R. A. Lancaster), two negotiable notes executed by said corporation, “ The Greenbrier White Sulphur Springs Company,” duly organized December 29th, 1880, under its charter granted on the 6th day of December, 1880. Pirst. A negotiable note of $10,000, due four months after date, dated August 16th, 1881, payable at the Bank'of Lewis-burg, West Virginia, executed by the said corporation, “ The Greenbrier White Sulphur Springs Company,” and jointly endorsed by the said William A. Stuart, George L. Peyton, Henry M. Mathews, and R. A. Lancaster, who signs himself R. A. Lancaster & Co., the same having been duly protested, according to law, at maturity, for non-payment, and afterwards paid alone by the said William A. Stuart, one of the endorsers thereof. Second. Another negotiable note of $6,550.83, of date of August 9th, 1881, due at four months after date, payable at the office of P. C. Barber & Co., Baltimore, Maryland, executed by said corporation, “ The Greenbrier White Sulphur Springs Company,” and jointly endorsed by the said William A. Stuart, George L. Peyton, II. M. Mathews, and R. A. Laucas — 57 — ter, who signed liimself R. A, Lancaster & Co., duly protested, according to law, at maturity, for non-payment, and afterwards paid in full by. the said Stuart alone. The third .case : A case at common law pending in the circuit court of Augusta, under the style of William A. Stuart v. Georye L. Peyton, wherein the said Stuart sues the said Peyton as first endorser on a certain negotiable note in the amount of $5,000, due Xovember 15th, 1881, payable at the Bank of Lewis-burg, West Virginia, executed by the said “ The Greenbrier White Sulphur Springs Company,’’ severally endorsed — -first, by George L. Peyton; second, by said William A. Stuart; third, by R. A. Lancaster & Co., and Avhicli was duly protested; to which Peyton filed $5,000 as offset, and Stuart filed counter-offsets, as follows — $20,000; as to which $20,000 Peyton contends the proceeds, to the extent of every dollar, was expended improving the property of the White Sulphur Springs Company. The fourth suit is that of William A. Stuart v. Georye L. Peyton, seeking by creditor's bill, to set up a lien on Peyton’s real estate, one third of $27,519.30, the amount of the recovery by J. Fred. Effinyer, &c. v. Stuart, Peyton, Camden and Thompson, said liability haven arisen out of a purchase made by said Stuart for himself and his associates of' certain furniture, live stock, &c.,from George L. Peyton & Co.,'composed of -L Fred. Efiinger, R. II. Catlett, George L. Peyton and others ; which is defended by said Peyton upon the ground that it formed a part of the cost of his stock, and is covered and indicated by the words “ basis of costs ” in the contract of Xovember 4th, 1882. The said commissioner, Smith, having thus stated in detail the grounds and causes of the several actions brought by the said William A. Stuart, proceeds to state the relations of the parties previous to the commencement of this litigation. He says that in 1879, and for several years previously, the White Sulphur Springs realty was in litigation, under the control and — 58 — custody of the courts of West Virginia; that the partnership firm of George L. Peyton & Co., composed of R. H. Catlett, J. Ered. Effinger, George L. Peyton and others, were lessees of that property from the court, their lease to expire on the confirmation of a sale thereof, which had been decreed to take place on the 30th day of March, 1880; that William A. Stuart was a large encumbrancer of the said realty, and interested in a profitable management of the property, and agreed with George L. Peyton and J. X. Camden that the three would form a joint-stock company upon the basis of one-half to be held by Camden, who was to take in Ii. M. Mathews to share with him when it could be done, H. M. Mathews not to be known in the purchase, which was to be made on behalf of the said joint-stock company; but there was a side contract between Camden and Mathews, by which this was agreed between them; that Stuart was to hold one-fourth of the stock, and George L. Peyton one-fourth; that Stuart Avas to buy at the price of $340,000 for himself and his associates; that this arrangement Avas perfected, and Stuart became the purchaser and Camden turned over to H. M. Mathews a one-fourth interest in the stock, and subsequently assigned to one W. P. Thompson one-eight interest, or one-half of his one-fourth.- On the 1st day of May following, R. II. Catlett, acting for himself and Ms other partners, Effinger, Peyton & Co., sold the personalty belonging to them to the said William A. Stuart, aaTlo Avas acting for himself and his associates, at the price of $35,000, and this furniture taken and used and contributed to the production of the alleged $56,488.91, net profits of the Springs during the summer of 1880, and formed a part of the basis on which the $150,000 of the stock Avas issued as full jiaid-up. The commissioner then says, as to the contract of purchase by Stuart of Peyton’s interest in the Springs, made on the 4th day of Xovember, 1882, as this is a common defence against all the other claims set up by Stuart in these four several suits, — 59 — on tlie grounds of said Peyton’s endorsement of tlie several negotiable notes of tlie Greenbrier White Sulphur Springs Company, commissioner will take up all of the §aid claims and discuss them simply in the light of tlie paper claimed and filed by Peyton as the original contract of sale of his stock, November 4th, 1882. He says that Peyton claims that every dollar realized by the corporation, the said “ The Greenbrier White Sulphur Springs Company,” on discount by the banks of its sundry notes, endorsed by Peyton, in all but one instance, jointly with other company stockholders, and now asserted in the plaintiff’s (Stuart) bill, went into the improvement and furnishing of the Springs property; that the stock was issued on the basis of these improvements; that the liability assumed by Peyton endorsing these notes was assumed by reason of his being a stockholder, and as a part of the stock transaction ; that, had the notes been paid by the company out of its profits, he, as a stockholder, would have contributed his part, of the profits, and, if he had to pay individually, the payment would be oil account of the stock, and that the terms of the sale, “ on the basis of costs,” would naturally, and by ordinary interpretation, include all these asserted liabilities, thereby relieving Peyton therefrom, independently of the verbal'agreement at the time. The commissioner found against Peyton in all the cases, made an elaborate report in this case, to be applied in its effects to all the cases, and made formal findings in the other cases, and the circuit court sustained the commissioner in all his findings. When the commissioner’s report was filed, in April (as has been stated), 1889, Judge Sheffey, the able and leading and managing counsel for Peyton, had just died, and the court met in twenty days, and the defendant was not able to supply the place of Judge Sheffey with a lawyer who could give sufficient attention to the case, as the circuit court was then in session, and all the lawyers were full of their cases in which they had — 60 — been already retained, and moved the court for a continuance, but tlie court overruled tlie motion, and ruled that tbe case must be tried at that term. An able lawyer was then retained, who moved for a continuance, and assured the court that, in view of the immense record to be studied, it would be impossible for him to do justice to liis client or to himself, hut the court insisted that the case must he heard at that term, and gave an .indulgence of a few weeks; to, which refusal to continue the case the defendant refers as error in this court. The case being submitted, the circuit court decreed against Peyton in all the cases, and he applied for and obtained an appeal to this court. The cpiestion as to a continuance of the cases under the circumstances lies at the threshold of the cases here, hut for the present it- will he waived, and we will consider first the main question, which affects and controls not only this case, hut the other three set forth in the commissioner’s report. The agreement of the parties being that, to save exjjense and delay, all tlie cases should be considered and determined along with this. Tlie defence set up in each case being the same, and the evidence in each case being the same, there is no controverted fact not common to them all; and it was competent- for the parties, plaintiff and defendant, to agree as they did agree, to make no contest except in this case, and tlie result of this must, therefore, determine them all. The findings in the other eases being merely formal, no formal appeals have been taken in them, and none could be taken, as there were none hut formal findings therein, and so no errors apjiarent on the face of tlie record. Put this appeal, when decided, will decide them all, as the contract between the parties on tlie subject is a valid and binding one, and will he enforced for or against either party, as the result may determine. And if the circuit court’s decree in this case he affirmed, tlie findings in all the eases will stand affirmed; whereas, if the decree of the circuit court shall he reversed in — 61 — this case, by agreement of the parties, the formal findings in the other cases will be annulled by proper order in this court in these causes. We will now consider the main — indeed, the only — defence set xxp by Peyton, which is relied on to defeat all of the said actions. We have said enoixgh to make it clear that the execxxtion of the notes of the said The White Sulphur Springs Company, and their endorsements, are not denied. It appears, however, that they were executed for the common benefit of all of the incorporators of the said company, and the money raised xxpon them applied likewise, to the common benefit.; that Stuart and Peyton were, with others, stockholders in large amounts of the stock of this company, which oxvned the White Sulphur Springs property; that there were debts due by the company; that the property was vahxable, and its fixture believed to be promising, the net profits for a single season being stated on the hooks of the concern at. $.56,000. The debts of the old concern, still xxnpaid, gave trouble to the management, and the matter was still in litigation, and in the hands of the court. In this state of affairs, Peyton, the owner of four hundred and ten shares of the company’s stock, was appointed by the court, the court’s custodian, and it was expected that at the next term of the court, he would -be appointed receiver of the property, and he was also the manager of the business, being a practical hotel man. Stuart was a large encumbrancer of the property, and anxious to formulate some plan by which he could make the place more profitable. He turned his eyes now to the wealthy and skillful architect of the Hygeia Hotel, at Old Point, Harrison Phcebus. The extension of the Chesapeake and Ohio railroad line to Hewport Hews and to Old Point, where the Hygeia Hotel stood, having connected these two great rival public resorts by a continuous all-rail line, he procured the presence of Henry M. Mathews and of Mr. Phoebus at the — 62 — Exchange Hotel, in Richmond, and opened negotiations to lease the "White Sulphur to Phoebus. Pending these negotiations, which were conducted without notice to Peyton, by accident Peyton visited the Exchange Hotel and came upon them. Henry M. Mathews, soon after Peyton’s -arrival, told him it was proposed to lease the Springs to Phoebus. Peyton forthwith announced his purpose to lease them himself. The next morning Stuart announced to Peyton that, to he frank with him, they had already agreed with Phoebus, and he was to be there that day to close the matter. Peyton objected now in earnest, and announced his purpose of striking for control of the property by securing the aid of the creditors, some of whom were already with him; this to, Governor Mathews, who told Stuart, and returned to Peyton with the information that Stuart would buy him out, and negotiations to that end at once began in earnest; and Stuart asked Peyton if he would sell out, a.s he said he would, what terms would he make ? Peyton replied that, if Stuart would pay him $5,000 bonus, and release him from all responsibility for the company, and all responsibility and liability to him, he would close with him. Stuart', having planned to substitute Mr. Phoebus for Peyton, asked Peyton to give him an option, and wanted ten- days. Peyton told him he could have until 12 o’clock that day. .Stuart objected to the shortness of the time, and Peyton agreed to -extend it to 3 o’clock of that day. Stuart then commenced to prepare the option proposition, which is exhibited with the deposition of Stuart; and is as follows: “ I, George D. Peyton, do hereby sell to W. A. Stuart my 'stock in the Greenbrier White Sulphur Springs Company of West Virginia, on the basis of costs, which cost is represented by my notes in the hands of the said Stuart, and the matters of discount and interest paid for me by said Stuart. These notes are to be returned to me as paid out. In addition to the above, said Stuart is to pay my debt to Dr. Moorman (of about — 63 — $4,000), and enough in addition to make the sum of $5,000, within ten or fifteen days. “ This contract is binding on me until 3 o’clock this P. M., between now and which time Stuart is to accept the same, in writing, if he so elects, and place said writing of acceptance in my hands.” A line appearing run through the words, “ in addition to the above, said Stuart is to bear said Peyton’s share of his liability.” The whole of this paper is written in.the handwriting of said William A. Stuart, and the word “ liability ” is followed by full stop or period”, showing that the sentence was completed. 4th. In addition to the above, it further agrees that said Stuart will pay to said Peyton the amount of his (Peyton’s uncollected) salary for the present year, up to the first day of January, including the amount of board-bill for Stuart and family at the White Sulphur Springs during the past summer, which was paid by said Peyton for Stuart, and credited to the ■one-fourth of the superintendent’s salary, to which the said .Stuart was by contract entitled. “ Witness my hand and seal November 4th, 1883. “ George L. Peyton, [S.] “ I further agree to put no obstacles in the way of said Stuart and his associates in their efforts to regain and hold control of the said Greenbrier White Sulphur Springs. “ George L. Peyton.” “ I accept the above. “ W. A. Stuart.” “ ^November 4th, 1882. “Above acceptance in time. “ George L. Peyton.” — 64 — The defendant, George L.' Peyton, gives his version as to the erased words inserted above, with a line drawn through them— “ in addition to the above, said Stuart is to bear said Peyton’s share of his liability ” — as follows : • “ Stuart was writing, and when he got there he said : ‘ If we refer to the indebtedness of our company, Phoebus is very scary, and if he should find out the large indebtedness of the company it might defeat my agreement with him.’ We then discussed the matter verbally, and he agreed to give me the protection from the debts of the company as I had proposed. He then erased from the option proposition, as he had written it, the provision releasing me from the debts of the company; but it was distinctly understood and agreed between us that I was to be protected by him from all liability for said debts. A very short time after I had given him this option paper, I thought it would be safer for me to have our verbal understanding in writing, and I had another paper prepared protecting me on the line on which we had agreed. He declined to sign the paper, and we' did not discuss it all. I then made up my mind that we could not trade, and went to work on my plan of securing the creditors’ debts. Some hours after the time had passed limited for the acceptance of my option, he came to me and said he was behind time, but proposed that we go to a room and have some talk. We did so, and after very little talk we agreed on the contract of Hovember 4th, 1882, filed with my answer, and I accepted it as a clear acquittal, believing that it would, as it was intended to do, protect me from all liability for the debts of the company and to Mr. Stuart. The term, ‘ basis of costs,’ as used in that contract, was used, and was intended to mean, and was claimed by me and admitted by him to mean, to release me from all responsibility for the company and to Mr. Stuart. These were the only terms on which I would agree to sell out, and this was the distinct agreement and understanding beetween us at the time of the execution of that paper.” — 65 — He says, farther, that all the proceeds of the notes he had endorsed for the company were used for the improvement and furnishing the Springs property, and were partly the basis for issuing the stock which he held and sold to Mr. Stuart on the basis of costs, and it was so understood and agreed at the time. 1* At the time we traded I held Mr. Stuart’s receipt for three hundred and seventy-five shares of the stock and was, besides, entitled to thirty-five additional shares, making in all four hundred and ten shares, worth at par $41,000. Mr. Stuart had advanced for me, as part payment of this stock, the sum of $17,500,-and held my notes for that amount, and the interest and discount he had paid on it. “ This was all I owed him at the time, except, my notes of the company endorsed by me, which he had before that time paid and then held. The trade was intended to be a complete settlement of all matters between us, and loft me without any interest in or liability for the company, or responsible to him. “ It is not reasonable that I would have surrendered my rights in the company, and still left myself liable for the notes of the company I had endorsed. The agreement was that I was to be paid the $5,000 in cash; and when he found I was going to pay Dr. Moorman this debt he suggested the provision as to Dr. Moorman, because he thought he could get indulgence from the Doctor. “ On the 18th of the same month Stuart wrote to me, and asked indulgence on the money he was to pay me until the 1st. of January following. This letter asking indulgence at my hands was written fourteen days after his contract, at a time when he had in hand notes of the company endorsed by inc, and which he had paid, and would have been an offset as well then as now.” Since the 4th of November, 1882, Peyton never endorsed any renewal of any note, nor had any business transaction with Stuart. — 66 — This is Peyton’s version of the agreed, meaning of the words “ basis of costs ” at the time. Stuart now denies this, and contends that he only agreed to give Peyton for his stock what he had paid for him on the stock, about $17,500. The term basis of cost has had a construction put upon it by Stuart in the progress of these transactions. Mr. Stuart testifies that early in 1881 Camden and Thompson sold their stock to R. A. Lancaster on the basis of costs. Upon turning to that sale by Camden and Thompson of their stock in this company, which Stuart says was on the basis of costs, we find what Mr. Stuart’s definition of this term is when it does not affect him. It is in part as follows : “ The object of this agreement being to substitute the said R. A. Lancaster to all the rights of said Camden and Camden and Thompson in said contract, and in the company formed under the same, as if .the said R. A. Lancaster had been in it from the beginning, and the said Robert A.-Lancaster on his? part agreeing and hereby obligating himself to protect and fulfill all the obligations of the said Camden and Camden and Thompson, and to .save them harmless and acquit from all liability as fully as if the said Robert A. Lancaster had been the original party to the said contract instead of said Camden.” Mr. Stuart used this language when he traded with Colonel Peyton, and this is the meaning which Peyton says Stuart put upon the words at the time; but Stuart says he meant nothing of the sort. That when he was trading with Peyton, basis of costs meant what Peyton’s stock had cost Stuart in the way of loans; and that he received Peyton’s stock, worth $40,000, and all of Peyton’s interest in the White Sulphur Springs Company, of which he was one-fourth owner and superintendent with a large salary, for $17,500 and $5,000 more, and, while Peyton gave up all interest in the Springs, and all hope of ever making anything out of them, yet he stood sponsor for the company’s debts, created for betterments on the Springs, for the amount set forth in his several suits, and stated above. — 67 — But when basis of cost was used between Lancaster and Camden it meant basis of cost. But again, Mr. Stuart has put his own interpretation in writing upon this term within a few days after he made the purchase of Peyton and made the sale to Mr. Phoebus. Here is the letter of Stuart to Peyton, written shortly after ho agreed to buy Colonel Peyton’s stock on the basis of costs : “ Hoy. 18th, 1882. “Col. Geo. L. Peyton: “Pear Sir — I have seen Hr. Moorman, and told him of our trade. Me does not care to have his money just now, and hope it will be agreeable to you to let it stand till next fall, unless the Doctor desires it sooner. I would like you also to indulge me a little on the balance that will be due you — say till Jan. 1st. I know you would have done this if I had asked it in Richmond, but after I had sold the interest to Phoebus I was too much hurried to ask yoxr. Phoebus had to leave at 4 o’clock, and I had to see him again. I gef nothing from him under a year. ° [Signed] “ W. A. Stuart.” Wants time, then on the Moorman debt; in these proceedings (and there have been, no subsequent transactions between him and Peyton), he repudiates it altogether; politely asks for indulgence on the thousand dollars due Peyton — asks indulgence for a short time — say till January 1st. He now offsets Peyton’s offset of this two thousand’ dollars with a counter-offset of more than $20,000 due to him from Peyton, by his insistance in this suit at this very time, when, if he is right now, Peyton should have begged indulgence from him for more than $70,000. The short indulgence asked was granted, and the time running out, and thirty days more, Peyton drafted on Stuart for $300, a part of what was due him, but Stuart refused payment, and spoke of these notes. Peyton promptly replied : — 68 — “ As to the claims of which you speak, they were all in existence at the time our contract was made, and you had paid some of them at that time, as I understood. And I suj>pose, moreover, that the claims are amply secured, and you, yourself, hold indemnity in your own hands — in the greater part of them, if not for the whole. It is . a matter of inconvenience to me to go without the money due me, small as the sum may be regarded. I will remind you of the fact that 190 bonds, of $500 each, are held by Alex. F. Mathews (the bank cashier) as collateral security for the notes you refer to. [Signed] “ Geo. L. Peyton.” “Feb. 23d, 1883.” The learned counsel for the appellant has referred us to many circumstances, which show in the record that Stuart’s memory was very frail, and where he appears to be contradicted by incontrovertible circumstances, and, indeed, by his own admissions. We have given these careful examination and consideration, and we find them in every case sustained by the record; but we cannot follow that line of discussion further within the reasonable limits of an opinion already too long. But upon consideration of the whole record, we find no difficulty in arriving at our conclusions. Stuart had seen Camden and Camden and Thompson bought out by Lancaster upon the basis of costs, Lancaster stepping into the shoes of Camden and Camden and Thompson, receiving their share of the stock and of the property, and assuming all the liabilities of the company so far as Camden and Camden and Thompson had done so, letting out the latter, who transferred to Lancaster, as the contract states, “ without recourse or future liability in any form,” and, being dissatisfied with Peyton, -who was the superintendent upon a large salary, and who had the authority of a sort of receiver — 69 — from the court holding the property in litigation, and not being able othenvise to get him out and substitute in his stead a famous hotel-man, Mr. Harrison Phoebus, who had developed the Hygeia Hotel, and with it an immense fortune, proposed to buy Peyton out upon the basis of cost, as was understood between them, in the light of the Camden and Lancaster trade, for Peyton, of course, knew as much about this contract as Stuart did. He entered into the contract — the subject of this controversy — by which he not only secured one-fourth interest in the stock and the. Springs property, but made vacant the place of superintendent and receiver, and opened the way to lease the property to Mr. Phoebus, which was accomplished. On November 18th, when he so politely asked indulgence of Peyton, Peyton’s time was not out, and January 1st was named. When that time came he took no notice of Peyton nor of his contract; but when, after waiting thirty days, Peyton drafted for $300, he dishonored the draft, and began this controversy, by which he has caused all of his contracts with Peyton to be set at naught, not only not paying Hr. Moorman, not only not paying Peyton, not only not returning to Peyton his papier, with interest and discount as paid, but, sweeping away every defence set up by Peyton, he has overwhelmed him, by the help of the commissioner and the circuit court, under a load of debt of $70,000 and more, on account of these very debts of the company which passed under his control into his hands, and which he agreed to pay with the property Peyton turned over to him. He has all of Peyton’s interest in the Springs property, and holds Peyton bound for the debts contracted by the company in making the Springs property what it is; has Peyton’s $35,000 worth of furniture (by his own valuation) for nothing. This "is the result of the court’s decrees and orders in these four suits. We are of opinion that they are wholly unsustained by the facts in this record." Peyton’s defence, as we — 70 — have seen, is set up against, and is a valid defence to each and every of these four suits, and, as such, will be uphold by proper orders here and will be enforced against the said Stuart in each suit. And as Stuart has not paid, but repudiated his obligation to pay Dr. Moorman the $4,000 which Peyton owed him, and which ho agreed to pay him, Peyton being left to take care of that himself, a decree will be rendered here against said Stuart for the $5,000 due Peyton, with interest, and the other suits ordered to be dismissed. And the decrees and orders appealed from here are wholly erroneous, and must be reversed and annulled.