Moundsville, Benwood & Wheeling Railway Co. v. Wilson

44 S.E. 169, 52 W. Va. 647, 1902 W. Va. LEXIS 45

• Court: West Virginia Supreme Court
• Decided: November 22, 1902
• Status: Published

Opinions

DENT, PRESIDENT : '

J. W. Burchinal and oihers obtained a writ of error to a judgment of the circuit court of Marshall County, rendered on the 20th day of July, 1901, in favor of the Moundsville, Ben-wood and Wheeling Railway Company for the sum of $3,065.55, and assign the following errors:

Fir si, The overruling of the demurrer to the declaration;

Second, The rejection of the plea of ultra, vires; and,

Third, That the judgment is not sustained by the evidence.

The declaration is founded on a bond executed by the defendants with the following condition, to-wit: “The condition of the above obligation is such that whereas the above bound principal obligors and M. F. Cox, the stockholders of the Mounds-ville, Benwood & Wheeling Railway Compan)', did, on the twenty-first day of August, 1897, enter into a written agreement, under seal, with the above named obligees, the purpose of which was to provide for a re-organization of the said railway company (which.is now in the hands of a receiver under an order of the United States Circuit Court) and for the payment of its debts by means chiefly to be furnished by the said obligees; And whereas it is, among other things, provided by the said agreement that the parties of the first part therein (corresponding with the principal obligors herein) shall well and truly pay off and discharge all the debts and liabilities now existing against the said company in excess of one hundred and fifteen thousand dollars, which last mentioned amount is to be settled in part by the use of one hundred thousand dollars, cash, which the second parties in said agreement are to furnish, and in part by the assumption or payment by the comtcmplated reorganized ppmpany of a floating indebtedness mf fifteen thousand dollars, and that the said first parties will give bond, with soeurit.y, to assure the payment of such excess;

“Now, therefore, if the obligors herein, or any person for them, shall well and truly pay off and discharge all of the liabilities now existing against the said Moundsville, Benwood & Wheeling Railway Company which shall not be satisfied by the use of said one hundred thousand dollars, cash, and the 'assumption by said contemplated reorganized company of fifteen thousand dollars thereof, then shall the above obligation be void, otherwise it shall be and remain in full force and effect.”

The bond was payable to J. A. Miller and others, who assigned the same to the plaintiff for whose benefit and protection it was taken, its object being to indemnify the plaintiff against the outstanding indebtedness of the old company in excess of one hundred and fifteen thousand dollars. Such indebtedness must have presumptively at least been known to' the defendants and also the fact that the one hundred and fifteen thousand dollars had been furnished. Hence averment of notice of these things was wholly unnecessary in the declaration. The defendants’ 'means of knowing them were fully as great as those of the plaintiff, for the money could not have been furnished and the debts paid without their knowledge, as the business of the company was still under their control or that of their receiver until the contract for re-organization had been consummated. As soon as this was accomplished they became liable for the excess of indebtedness intended to be secured by the bond. The suit itself is notice and demand for the payment thereof. 14 En. Plead. & Prac., 1067.

It is claimed the declaration is bad for failure to aver nonpayment of the penalty to 'the obligees before assignment. It is necessary to aver non-payment of the penalty. Riggs & Co. v. Parsons, et al., 29 W. Va. 522; State v. Phares, 24 W. Va. 657; Braxton’s Adm’r v. Lipscomb, 2 Mumf. 282. Still this averment need be only in the most general terms. Cobbs v. Fontaine, 3 Rand. 484. The averment in this case is in those words: “Yet the said defendants, although often requested have not nor has either of them as yet paid the said plaintiff the said sum of twenty thousand dollars or part thereof, but the same to pay hath hitherto wholly neglected and refused and still do neglect and refuse.” This is undoubtedly broad enough to cover the obligees and assignors of the bond, although it might have easily been made more specific without the pleader becoming prolix.

It is true the assignors of the bond have suffered no damages directly, yet as the bond was taken for the protection of the company in which they were pecuniarily interested, the whole damage contemplated by the giving of the bond has been suffered either by themselves or their assignee, and if not paid by the obligors must be lost by the stockholders of the plaintiff — a loss^ which tire bond was executed to prevent.

Nor is the plea of ultra vires broad enough to cover if at all applicable to this case. The assignment was a mere nominal matter to enable the plaintiff to sue in its own name without controversy. Otherwise it would have had the right to sue in the names of the obligees for its use and benefit, as it was the real beneficiary of the bond. The assignment was but intended to simplify the legal proceedings for the enforcement of the bond. This bond was taken to protect the stockholders of the reorganized company, and hence the company from the pajunent or loss of the indebtedness of the old company in excess of $115,000.00. The real consideration for the assignment was that the plaintiff must pay this excess of indebtedness, and therefore having it to pay it was entitled to recover it from those who had obligated themselves to pay it for the relief of the reorganized company and its stockholders. This was strictly the business of the company, and in no wise in violation of its charter or the purposes for which it was created.

The various objections as to the sufficiency of the evidence are so fine «pun and technical that it is hardly worth while to notice them except as matter of respect to the able and learned counsel presenting them. It is insisted that there is no proof of notice. As heretofore shown, under the circumstances of this case no notice was necessary except in so far as the suit furnishes a notice and demand that defendants comply with their agreement and bond. The evidence of Alfred Paul; as manager of the reorganized company fairly shows that the obligees fully complied with their contract, and undoubtedly presents a fair prima facie case against the obligors. The defendants introduced no evidence.

The judgment is affirmed.

Affirmed.