Kinsey v. Carr

Sanders, Judge: The plaintiff, T. S. Kinsey, brought an action of assump-sit in the circuit court of Wood county, against W. M. Carr, — 450 — A. S. Carr, Percy H.' Carr, Wm. B. Parris and others, partners as the Carr Oil Company. By consent of the parties, the action was abated as to all •of the defendants except the three Carrs, who plead the ...general issue, and payment. The case was upon the joint motion of the plaintiff and defendants referred to a commissioner to take and state an account between the parties. Under the order of reference the commissioner reported adversely to the plaintiff, to which report he excepted, but the •court overruled the exception and entered judgment for the •defendants, and this judgment is now here for review on writ •of error. The commissioner finds and reports from the evidence-that the plaintiff is estopped to recover the amount claimed by him, and it is argued by counsel for the plaintiff that the commissioner had no right to pass upon the question as. to whether or not the correct balance found by him was due or not due 'to plaintiff, because of the estoppel set up by the-defendants, but that the sole purpose of the reference was to* take and state an account between the parties. As to. whether or not this contention is tenable we find that it is. unnecessary to ‘decide, because by agreement of parties the-•case was submitted to the court in lieu of a jury, upon the •commissioner’s report, the exceptions of the plaintiff .thereto, upon the pleadings in the case, and the evidence-returned by the commissioner in support of his report. 'Therefore, granting that the commissioner did not file such report as was required by the order of reference and by section 10 of chapter 129 of the Code, section 8921, Annotated •Code 1906, yet if the evidence filed with the report, and ■upon which the case was heard, is sufficcient to support the judgment, we could not reverse because the commissioner passed upon • this evidence and found that the plaintiff was •estopped. The evidence taken by the commissioner and .upon which he bases his report was returned and filed with ■his report, and was, by agreement, considered by the court. The report of the commissioner as to such matters properly referred to him, and upon which he could properly report, is only prima facie correct. It may be overthrown by evi- . dence, and when all the evidence is in, it is for the court to . determine whether or not it is correct. When a commissioner — 451 — does not report in obedience to the order of reference or as provided by the statute, not deciding, however, that the commissioner has not done so, the court could recommit the case to him. But where it is not recommitted, but submitted on the report and the evidence returned with it, the court will look to the evidence, together with the report, and decide the right of the case therefrom. And again, the plaintiff did not except to the report on the ground that the commissioner did not obey the order, or that he reported conclusions of law and passed upon conflicting evidence, but seeks to raise this question here for the first time. This brings us to the question as to whether or not the judgment is supported by the evidence. The evidence is somewhat conflicting, but it will not be necessary to point out wherein this is so, because we are, upon a review of the judgment, under the rules of law, required to disregard all the evidence which is in conflict with that which goes to establish the contention of the defendants, unless such conflicting evidence clearly and plainly preponderates. The same rule applies here as that by which a demurrer to the evidence is tested. Before we can reverse the finding of the lower court, the judgment must be without sufficient evidence to support it, or plainly and manifestly against the decided weight and preponderance of the evidence. Therefore, if we find there is sufficient evidence to support the judgment, and that the material conflicting evidence does not plainly preponderate, we must sustain the court’s findings. Buck v. Newberry, 55 W. Va. 681; Barrett v. Raleigh C. & C. Co., 55 W. Va. 395; State v. Sullivan, 55 W. Va. 597; Fulton v. Crosby & Beckley Co., 57 W. Va. 91. Numerous other cases might be cited to the »ame effect, but it is deemed unnecessary to do so. We will give briefly the .material facts which the court below could have found from the evidence. During the years 1897 and 1898 the Carr Oil Company, owning and operating certain leaseholds for oil and gas near Cornwallis, in Ritchie county, engaged T. S. Kinsey to drill for it certain oil wells. Kinsey, at the same time, had a contract with Stuart & Young, of Chicago, for drilling on the Wells farm, in Ritchie county. Stuart & Young had — 452 — a contract with the Carr Oil Company by which they were to finance that company, so that for all the work which Kinsey did under these two contracts, which were separate and distinct, he was paid by Stuart fe Young, and they paid him for all the work done by him upon the Wells farm. Stewart & Young owned a three-eighths interest in the Carr Oil Company. In 1898 Kinsey finished his'work at Cornwallis, at which time the Carr Oil Company was indebted to him, on account of work done at that point, between twelve and thirteen thousand dollars. In July of that year Kinsey entered into a contract with A. S. and W. M. Carr, by which he was to drill certain oil wells at Sugar Grove, Ohio. This contract was later assumed by Stuart & Young, who were to pay Kinsey for the work done under it. At this time Kinsey had outstanding two notes for $500 each, payable to Ireland & Hughes, of Pittsburg, Pa., one due July 25th and the other August 25th, 1898. Prior to the time of leaving Cornwallis, Kinsey had spoken to W. M. Carr relative to these notes; saying that the Carr Oil Company must take care of them. He also told Carr that he must have one thousand dollars. Carr told him to write to the Company in Chicago, and that doubtless the matter would be attended to. Kinsey did as he was directed, and on Sept. 2 received from Stuart & Young a check for one thousand dollars; also, on the same date, he received from them a letter stating that the two notes had been taken care of. In this letter no direction was given as to how the money should be applied. Kinsey entered a credit on his books to the Carr Oil Company for the first five hundred dollar note, but made no entry as to the other note or the one thousand dollars cash item. He says he intended that the whole amount should be entered as a credit to the Carr Oil Company, and he thought this had been done. Early in the month of September Kinsey told W. M. Carr that the Carr Oil Company had taken care of the two notes and had also paid him one thousand dollars cash. On the 28th day of September, 1898, Stuart & Young, Wm. B. Farris, and A. S. and W. M. Carr entered into a contract by which the Carrs and Farris bought the interest of Stuart & Young in the Carr Oil Company, subject to the — 453 — debts of said Company, and for themselves and their associa-eiates, released Stnart & Young of all claims which they had against them. On September 30th, following, Kinsey received a letter, from Stuart & Young, stating that the two thousand dollars — one thousand dollars paid to Ireland & Hughes and the one thousand dollars cash — were to be credited to their acount. Thereupon Kinsey erased the five hundred dollar credit which he had given to the Carr Oil Company, and later informed the Carrs that he had received'directions from Stuart & Young as to how the two thousand dollars should be applied, and that the amount was not a credit on the Carr Oil Company’s account. The direction of Stuart & Young, made to Kinsey on September 30th, was to apply the two thousand dollars as a credit on the work done at Sugar Grove. By the terms of contract with Kinsey, they were not required to pay for wells until they were completed. At the time that Stuart & Young paid these amounts, early in September, there were no wells completed on the Sugar Grove work — hence no money was really due Kinsey on that work at that time: It is the custom among oil people that wells are never paid for until completed. A dispute arose as to whether or not the two thousand dollars had been credited by Kinsey upon the Carr Oil Company’s account. In 1901, by virtue of a settlement between them, the Carrs paid to Kinsey all that was found due to him from the Carr Oil Company, with the exception that no agreement was reached as to the item of two thousand dollars, and the parties not coming to any conclusion in regard to it, this action was instituted for its recovery. While the court overruled the exceptions of the plaintiff to the commissioner’s report, which found that the plaintiff was estopped, yet it does not appear upon what ground the court predicated its decision — whether upon the ground of estoppel or upon some other ground. Nor is it material what reasons it gave for its decision, if the judgment is supported by the evidence. The court may have given the wrong reason, still if the plaintiff, from all the evidence, was not entitled to recover, the judgment will not be reversed simply because the decision was put upon the ground of estop454 pel when it appears there was no estoppel, when there is another sufficient reason upon which the judgment can be sustained. Lee v. Patton, 50 W. Va. 20; Ballard v. Chewning, 49 W. Va. 508. We do not think the evidence supports the view of the commissioner wherein he reports that the plaintiff is es-topped, because the facts show payment, and if so, there can be no estoppel. The work on the Wells farm had been completed and paid for, and the wells at Sugar Grove had not been completed; and, according to the understanding and agreement between the parties, they were not to be paid for until completed. Therefore, at the time Stuart & Young sent Kinsey the one thousand dollars, and notified him that the Ireland & Hughes notes had been taken care of, there was nothing due from them to Kinsey, and, in fact, nothing was due to Kinsey on account of any of the work except the work at Cornwallis. There being nothing due from Stuart & Young to the plaintiff at that time, it certainly does not seem-reasonable that they would advance to him this sum without being requested to do so. If it is said that there was such request, it cannot be sustained from the evidence. The plaintiff, before that time, called upon W. M. Carr and stated that he wanted the Ireland & Hughes notes taken care of, and that he wanted one thousand dollars. Carr requested him to write to the Carr Oil Company in Chicago, and stated that no doubt it would take care of the notes and pay him the desired sum of money. Following up this conversation, Kinsey did write to the Carr Oil Company, requesting it to take care of the notes and to send him one thousand dollars, and in obedience to this request, Stuart & Young, who received the letter written to the Carr Oil Company, sent the one thousand dollars, and notified Kinsey that the notes had been taken care of. It is true the check was signed by Stewart & Young, but this is not significant, because the agreement between the Carr Oil Company and Stuart, and Young was that Stuart & Young were to receive the output of the wells operated by that Company, and to pay all of its bills. So, whether they sent their individual check, or the check of the Carr Oil Company, is immaterial, because at this time they owed the plaintiff nothing, and the request was not made to them to advance any sum of money — 455 — on account of the Sugar Grove wells, but the request was directed to the Carr Oil Company, which at that time owed the plaintiff. In , their letter to Kinsey, Stuart & Young did not claim, nor did they in any way intimate, that they were adváncing this money on their individual account, and inasmuch ■ as the request was to the Carr Oil Company, we certainly cannot assume that this was on account of an individual transaction between them and Kinsey, but it is perfectly patent that it was on account of the transaction between the Carr Oil Company and Kinsey. This request having been made, the money having been sent, the notes having been taken care of in compliance with the request, and Kinsey having applied it to the credit of the Carr Oil Company, as he said it was his intention to do when he made the request, is strong evidence in payment. During the course of Kinsey’s examination as a witness, it developed that he had only actually entered upon his books to the Carr Oil Company’s credit, one of the five hundred • dollar notes, but he told the Carrs that he had credited the entire amount to their account. And it was not until after the Carr Oil Company bought the interest of Stuart & Young in that Company, subject to its debts, and released Stuart & Young from all liability on account of any of the transactions,that the Carr Oil Company found that Kinsey was claiming anything on account of this indebtedness. Stuart & Young said nothing as to where this money should be applied until after the consummation of the agreement aforesaid, and they then notified Kinsey that it should be applied upon the Sugar Grove wells, and it was after this that the plaintiff claimed that he changed his credit from the Carr Oil Company to Stuart & Young. This he could not do. As we have seen, the payment of the Ireland & Hughes notes and of this sum of money by Stuart & Young, for the Carr Oil Company, upon the request of Kinsey, constituted a complete payment, and a discharge of the obligation of the Carr Oil Company to the plaintiff. It is said that there is nothing to show that the money was that of the Carr Oil Company. Whose money was it? Application was made to the Carr Oil Company to pay it, and it was paid by the-parties who had been appointed to do so,- — 456 — and there is nothing to show that it was the money of any other person. And even though there is no positive proof that it was the money of the Carr Oil Company, we should presume it to be so. But suppose it was the money of Stuart & Young; they agree(d to pay the bills of the Carr Oil Company, and they, upon request, applied this money to the payment of the debt due from the Carr Oil Company to Kinsey, which thereby discharged the obligation. ' The defendants cross-assign error, and insist that the lower court, instead of merely finding against the plaintiff, should have given them judgment against the plaintiff for the amount of the sets-off. A sufficient answer to this assignment is that the evidence abundantly shows that all the matters between the parties had been settled, except the sum sought to be recovered in this action. For the foregoing reasons, the judgment of the circuit court is affirmed. Affirmed.