RULE 14-BRIEFS
1. Form and content& of appellant's brief. The ope11ing brief of the aJJpellanl ( or pet1t1011 for appeal when adopted as the opening brieci) shall comain: (a) A subject index and table oi citations with cases al11hal.Hotically arranged. l itation; Virginia .. a~es must refer to the Virginia Reports and, in addition. may rde, tu other ,orts cr,ntammg such cases. (h) A brief statement of the material proceedings in the lower court the errors assigned, d tl«· questions in\'oh-ed in the apJJeaL ' (c) A clear and concise statement of the iacts, with . eferences to the pages of the n'co:-d ,ere there is any possibility that t11e other side may question t11e statement Where the fact, , controve ed it should be so stated. (d) Argument in support of the position of appellant. The brief shall be signed by at least one attorney practicing in this court, giving his addr~ss . . 7'he appellant may adopt the petition for appeal as his opening l:,riet by so sratiug in thr t1t1on, or by giving to opposing counsel written notice of such intt:ntion within five
INDEX TO PETITION Page (Record No. 2844)
Preliminary Statement ...... l* Question for Decision ...... 2* Standard Branch: Statement of the Case ...... 2* Error Assigned ...... 6* Argument ...... 7* Simmons Branch: Statement of the Case ...... 17* Error Assigned ...... 18* Argument ...... 19* Harding Branch : Statement of the Case ...... 21 * Error Assigned ...... 21 * Argun1ent ...... 22* Conclusion ...... 23*
SUBJECT INDEX TO CITATIONS Appearance and answer Virginia Code, Sec. 6399 ...... 21 * Attachment levy Burks Pleading & Practice, Third Edition, Sec. 358 . . 23* Virginia Code, Sec. 6390 ...... 23* Virginia Code, Sec. 6416 ...... 14* Commissioner's reports, weight accorded Roark v. Shelton, 169 Va. 542 ., ...... 18* Defenses of co-defendants · Burks Pleading & Practice, Third Edition, Sec. 361 . . 1O* Virginia Code, Set. 6403 ...... 10* Relationship, debtor and creditor Dawson Banlz v. Harris, 84 N. C. 206 ...... 9* Remedies for conversion Detinue Burks Pleading & Practice, Third Edition, Sec. 133 15* McClure Grocery Co., Inc. v. Watson, 148 Va. 601 15* General Booker v. Donohoe, 95 Va. 206 ...... 12* Sangster v. Commomoealt/z, 17 Gratt. 139 ...... · Trover Burks Pleading & Practice, Third Edition, Sec. 164 .. 13,15* Virginia Code, Sec. 6087 ...... 13,15* Set-off Co-defendant against plaintiff in attachment ·· A lien v. Hall, 5 Metcalf ( Mass.) 263 ...... 9* Smith Lumber Co. v. Scott Garbage, etc., 12 N. W. 389, 30 L. R. A. (N. S.) 1185 ...... 13* Generally Burks Pleading & Practice, Third Edition, Sec. 223, 224 12* Burks Pleading & Practice, Third Edition, Sec. 92 . . . . 11 * Tideu,ater Quarry Co. v. Scott, 105 Va. 160 ...... 11 * Virginia Code, Sec. 6144 ·...... ~...... 12* Virginia Code, Sec. 6097a ..... ,...... 12* Limited to principal defendant Virginia Code, Sec. 6403 ...... 1O* Title to personai property Cooley on Torts, p. 426 ...... 22* 65 C. J. 46 ...... 22* Ullman v. Biddle, 53 W. Va. 415, 44 S. E. 280 ...... 20,22* Williston on Sales, Second Edition, Vol. 1, Sec. 311 . . 22* Wilson v. Rucker~ 1 Call 500, 5 Va. 500 ...... 20* In The SUPREME COURT OF APPEALS OF VIRGINIA At Richmond
THE FIRST NATIONAL BANK OF WAYNESBORO .' ...... Appellant
v. Petition for Appeal and Supersedeas
R. H. JOHNSON, Principal Defendant, MARY C. JOHNSON, STANDARD OIL COMPANY OF NEW JERSEY, JAMES S. SIMMONS JR., · trading as Simmons Parts Company, and A. R. HARDING, Co-defendants ...... : . Appellees
To the Honorable, the Chief Justice and Associate Justices of the Supreme Court of Appea/,S of Virginia:
Your petitioner, The First National Bank of Waynesboro, res pectfully represents that it is aggrieved of a final decree of the Circuit Court of Augusta County, entered on the 25th day of October, 1943, whereby the petitioner was denied the right to re.:. cover the sum of $704.16, with interest, attorney's fee, and costs, from the property of R. H. Johnson, principal defendant, in the possession of the co-defendants mentioned. above.
PRELIMINARY STATEMENT
This' is an attachment proceeding in equity, brought by The First National Bank of Waynesboro, hereinafter called "the bank,' against R. H. Johnson, principal defendant, tenant and filling sta tion operator, the Standard Oil Company of New Jersey, landlord, designated in this petition as ·"Standard," A. R. Harding, 2* pur*chaser of Johnson's gasoline station supplies, James S. Simmons, trading as Simmons Parts Company, and Mary C. Johnson, wife of the principal defendant-the last four being co-defendants. In the progress of the case it developed into three branches and will be so presented here. . The question for decision on the Standard branch is: Can a landlord, without process of law, re-enter the leased pre- 2 Supreme Court of Appeals of Virginia mises of an absconding tenant, seize and s_ell the tenant's prop erty to a new lessee as an attachment is levied thereon, credit the proceeds of sale to rent and other unsecured indebtedness of the tenant, and thereby discharge the tenant's property thus sold of liability in the possession of the co-defendants? The Master Commissioner in his report answered in the nega tive, while the Chancellor in his decision on exceptions taken an swered in the affirmative.
STA TEMENT OF THE CASE
STANDARD BRANCH
From a transcript of so much of the record as it was agreed was necessary for a full and fair presentation of the questions in volved, herewith presented as a part of this petition, the facts, briefly stated, appear as follows: Standard is the owner of a gasoline filling station property ly ing and being at the i~tersection of Commerce A venue and 3* *the Jefferson Highway in the Town of Waynesboro, Vir- ginia, which it leased to R. H. Johnson as tenant for a term of one year, ~with certain renewal privileges, by an agreement of April 26, 1941. The annual rental reserved was $1680.00, pay able in twelve equal monthly installments of $140.00 a month in advance. The tenant operated the leased premises from the time the property was ready for occupancy in May, 1941, until the night of July 7 following, whereupon Johnson, the tenant, abscond ed, leaving on the leased filling station premises a large quantity of supplies such as gasoline, oils, greases, tires, tubes, automobile parts, and many other items, of an inventoried value extended by Standard amounting to $1251.38. This property. had been pur chased from Standard and all had been paid for except one load of gasoline delivered shdrtly before the tenant left. Standard claimed no lien against the Johnson property. On July 8, the morning ·following the departure of Johnson, representatives of Standard entered upon the premises, took pos session of all of Johnson's supplies and property, operated the station either until noon of that day or until noon of the day fol lowing, then closed the station and made an inventory of all of the merchandise on the premises owned by Johnson. Mary C. Johnson, the tenant's wife, was present at the station every day First National Bank of Waynesboro v. R.H. Johnson et als. 3 until a sale of Johnson's property was concluded to A. R. Harding, the ne,v tenant, late in the afternoon of July 11. There were certain other items of Johnson's personal propery not bought 4* *from Standard on the premises at the time Standard mov- ed in, used by Standard in operating the station, although not taken into the inventory, and these items Standard required Mrs. Johnson to remove from the station premises before Harding, the new tenant, took possession, and Johnson's gods were delivered to the new tenant for operating the station. On the 11th day of July, the fourth day after Johnson left, Standard sold Johnson's goods to A. R. Harding for $1196.16, the inventoried price fixed thereon by Standard, less a few items sold during the operation of the station by Standard, and thereupon delivered the goods to the new tenant, who had signed a lease which was then in the possession. of Standard's representative or else was on its way to the Richmond office for final execution by some one in authority. Johnson obtained a loan from the bank, evidenced by his nego tiable note of $720.00, endorsed by his wife, Mary C. Johnson, the proceeds from which were used in paying for the supplies and opening the station; it was these supplies largely that Standard seized and sold to Harding. The- bank, to recover on the note, filed its bill in equity for an attachment, upon which writs issued, and the Deputy Sheriff went to the filling station premises, where he found the two representa tives of Standard, A. R. Harding, James S. Simmons, and Mary C. Johnson, to each whom he gave a copy of the writ ( except Hawkins of Standard), made a common law levy on all of S* Johnson's goods, in which Standard's representatives *coop- erated, and finally announced to all present his levy on the Johnson property. Standard's representatives made no claim to the Johnson property, nor did A. R. Harding, the new tenant and purchaser. Writs of attachment were also served on Standard through the Secretary of the Commonwealth. At the very time process was served on the parties named found on the premises, about four o'clock p. m. of the 11th day of July, the sale of Johnson's property was in its final stage of consumma tion; the invoice of Johnson's property sold Harding was given to Harding after the Deputy Sheriff made his levy and left the pre mises, and when the Deputy Sheriff arrived at the station, Stand ard's representatives were busy with the final details of sale. Standard answered and admitted the seizure of .Johnson's prop- 4 Supreme Court of Appeals of Virginia
erty and the sale thereof to Harding for $1206.14, plead John son's indebtedness of $1106.85 as a set-off, and offered to pay the balance of $99.29 into Court. The case was referred to Master Commissioner May, who gave the notice required of the hearing before him, took evidence, and filed his report sustaining the lien of the bank's attachment against Johnson's goods, to which report Standard excepted, and the ex ceptions were argued in June, 1942. In October,· 1943, fifteen months later, the Chancellor, in a written opinion, sustained the exceptions of Standard and entered the decree complained of, directing the balance of $99.29 in the hands of Standard to be paid over to the Sheriff, and it is from this decree that the bank seeks an appeal.
6* *ERROR. ASSIGNED
The bank assigns as error the action of the Chancellor in sus taining the exceptions of Standard, whereby he held : 1. That Standard was not in possession of any of Johnson's property at the time of the levying of the attachment. The posi tion of the bank is that Johnson's property was physically present at Standard's station, with Standard's representatives personally present, engaged in the final consummation of the sale to Harding; the goods were attached on the spot, and whether in the possession of or under the control of Standard or Harding, both were co de£ endants and served with writs of attachment; 2. That it was lawful for Standard, as landlord and co-defend ant, without process of law, to enter upon the leased premises of its absconding tenant, seize and sell the tenant's property as an attachment is levied thereupon, apply the proceeds first to seven days' rent due July 1, 1941, and the balance on an open account ' claimed· by the landlord as due and owing from the tenant, and : thereby be relieved from any and all liability to the attaching credi tor; : , J. That Standard was not a general creditor, but was a creditor with "a claim to, interest in, or lien ori the property attached," thereby enabling· Standard, as co-defendant, to wrongfully seques . ter Johnson's property and evade liability for the sale ther.eof; and, 7* *4. That Standard, as co-defendant, had the arbitrary right as a general creditor to grab Johnson's property and First National Bank of Waynesboro v. R.H. Johnson et als. S
tender the alleged value thereof, or the proceeds therefrom, as a set-off against Johnson's indebtedness to it.
ARGUMENT
In order that a clear insight into the methods employed by Standard in this most unusual case, it may be advantageous to ascertain the attitude of the managing representatives of this co defendant toward the rights, interests, and property of its tenant, revealed in this suit by the testimony of Standard's two represen tatives. R. W. Hawkins was general salesman for Standard in the Staunton district; he readily admitted the seizure of the ten ant's property, but denied the sale of the same property to Hard ing; however, he finally on cross examination attempted to justify these aggressive acts thus ( R. 104) :
"Q. Didn't you know that you were selling merchandise that the Standard Oil Company of ~ew Jersey had sold and delivered and placed in possession of Rodney Johnson? A. And we had taken it back and sold it to Mr. Harding. Q .. What right did you have to take that merchandise and sell it to A. R. Harding and Cecil Harding? Mr. Perry: Object to that as a matter of law which the witness cannot answer. A. The reason we took the merchandise was due to the fact that Johnson owed us money and I knew that that check was com ing through and I did not think it would be good."
8* *This witness continues his testimony by referring to the fact that he was at the filling station on the afternoon of July 7 and that Johnson showed him cash in the neighborhood of $700.00. , Standard introduced one other witness, W. J. Hewlett, district sales manager, who was wholly in accord with Hawkins in the seizure and sale of Johnson's property, without the knowledge or consent of Johnson and ,11.rithout legal process (R. 125-126), as follows:
"Q. According to your previous testimony, you did take over everything that was in the filling station? A. Yes, sir. 6 Supreme Court of Appeals of Virginia
Q. Under what authority or right did you have to take over the saleable merchandise in the filling station? A. When I took possession of the filling station, I took an inventory to be credited to an outstanding account owed us. Q. You did not answer my question. Did you have any au thority of any kind to take over the stock of merchandise at this filling station from any source? A. Only I did it."
The entry upon the filling station premises was justified by this witness on the fact that the rent of $140.00 had not been paid promptly when due on July 1, in advance, as required by the eighth clause of the lease. However, there is nothing in the lease vest ing in Standard any right to seize and sell the tenant's property (R. 157). 9* *A. R. Harding, as co-defendant, was given an invoice of the items of Johnson's property, purchased after the Deputy Sheriff had arrived, levied on the property, and left, and this invoice was the same as the original inventory, less the Jew sales made while the station was in operation (R. 78-79). · · R. H. Johnson, the principal defendant, never appeared in the case; Mary C. Johnson, his wife, endorser on her husband's note, was represented and testified. No question whatever was raised by any one as to the indebtedness due the bank on the said note. A general creditor has no interest in' his debtor's property and has no right to seize the same, as is clearly pointed out in Daw son Bank v. Harris, 84 N. C. 206, where it is said:
"A creditor, merely as such, and without a judgment, cannot pursue and get satisfaction out of the debtor's property. 1 This is undoubtedly correct, for without a judgment for the debt . . . the creditor has no claim upon his debtor's property."
Standard, nowhere in the record, makes any claim to an inter est in or a lien upon Johnson's property. The Chancellor, in his opinion (R. 242) quotes extensively from Allen. v. Hall, 5 Metcalf (Mass.) 263, where Chief Justice Shaw considers the question of set-off by the garnishee of a debt against the tangible property owned by a debtor in the garnishee's posses sion, where it is said :
"But where the trustee has goods in his custody, the property First National Bank of Waynesboro v. R.H. Johnson et als. 7 of the principal defendant, and in their nature liable to be attached by the process of law, the question, whether the trustee has any right to set off claims of his own, must depend upon the 10* fact *whether he has any lien, legal or equitab,e, upon such goods, or any right, as against the owner, as whose prop erty they are attached, by contract, by custom, or otherwise, to hold the goods, or to Tetain the possession of them, in security of some debt or claim of his own. If the party, who is summoned as trustee, has a mere naked possession of the goods, without any special property or lien ; if the principal debtor is the owner, and has a present right of possession, so that he might lawfully take them out of the custody, or authorize another to take them out of the custody, of the present holder; they would be liable to be at- · tacher as the property of the general owner, by an officer, uncle~ . the common process of attachment, if he could have access to them, and no right of the trustee would be violated."
The possession of the tangible property at the time of the ser vice of process was the determining factor, and the garnishee was not permitted to escape liability by the conversion of the property attached. No doubt the revisors of the Code had in mind the necessity of eliminating garnishee's or co-defendant's defenses when Section 6403 was adopted, thereby limiting the defenses to "a claim or title to and interest in or a lien upon the property at tached," or to such other defenses as are "Personal to themselves," or which may prevent a liability upon them or their property. See· Burk's Third Edition, Section 361, for discussion of this subject. The principal defendant is expressly given the right of set-off, but no such right is extended to a co-defendant. In this case, an effort is being made to fix Joluison's liability to the bank on his property, which, the record shows, was in the possession of Standard, or possessed by Standard and Harding or Harding alone. 11 * *On the question of set-off tendered by Standard, Master Commissioner J. H. May, now Judge of the Corporation Court for the City of Stat:mton, wrote so clearly and convincingly in his report that the bank· here adopts, as a part of this petition, that part dealiRg with set-off as follows:
"The Oil Company relies solely on its conversion of Johnson's property, and its right to off-set his indebtedness to it against the damages owing to him for the conversion. The doctrine of waiv- ·s Supreme Court of Appeals of Virginia
ing the tort and suing in assumpsit is involved, and the question arises as to whether that doctrine would apply in this particular instance. The company relies upon the case of Tidewater Qua.rr)' Company v. Scott, 105 Va. 160, wherein the principal question involved ·was, whether the value of goods which had been con verted could be set-off against a liquidated d~mand. In that case Scott instituted an action of assumpsit against· the quarry com pany on a claim due partly by note and partly on open account. The defendant quarry company filed its itemized statement of off sets, the items of which covered quantities of stone belonging to it which Scott had converted. Scott objected to the claim of the quarry company on the gr~:mnd that it tended to establish a claim for damages that could not be set off against his debt. The Court . invoked the doctrine of waiving the tort and suing in assumpsit ·and held that the quarry company had the right to waive the tort and bring its action if indebitatus assumpsit for the value of the goods converted upon an implied contract of the tort f easor to pay for the same. The Court further held in that case that the off-set of the quarry company was not unliquidated, but the amount there of was readily ascertainable, and therefore could be set off as. a debt against a debt. While the above doctrine is well established in Virginia and prevents circuity of action, your Commissioner cannot hold that it applies in the instant case. "In Burks Pleading and Practice, 3rd ed., Section 92, page 174 the rule of waiving the tort and suing in assumpsit is thus stated: 'Wherever a person commits a wrong against the estate of an other, with the intention of benefittting his own estate, the law will, at the election of the pmrty injured, imply a contract 12* on the part of the *wrongdoer; and in such case, the in- jured party may elect to sue upon the implied contract .... The legal presumption of the implied contract being conclusive, the defendant will not be per.mitted to set up his tort in order to defeat the implied promise.' "In the next paragraph it is stated: 'The injured party may bring indebtedness assumpsit for the value of the property on the wrongdoer's implied contract to pay for the property converted and appropriated by him.' The ~lection to waive the tort is solely within the power of the injured party, and it rests solely with him to pursue this benign course of action. "For the conversion the injured party has several remedies. He may bring trespass, trover, detinue, or assumpsit at his election First National Bank of Waynesboro v. R.H. Johnson et als. 9 as stated by "Judge Moncure in Sa.11gster v. Commonwealth, 17 Gratt. 134 and quoted with approval in Booker v. Donohoe, 95 Va. 359. Therefore, the election to waive the tort for the conversion being solely in the person injured, who is Johnson in this case, the Oil Company would have no right to waive its own tort and avail itself of the rule in question to the injury of Johnson, and thereby obtain preference over attachment ·and lien creditors. For the above reasons your Commissioner canont hold that the case of Tidewater Quarry Company v. Scott, supra is controlling. "The remedy of Set-Off is entirely a creature of statute, and was unknown to the common la,,.,. It is a counter demand of a liquidated sum growing out of a transaction separate to the plain tiff's demand. It is allowed in Virginia by virtue of Section 6144 of the Code. The Courts hold with uniformity that the Set-Off must be a debt against a debt and must be a liquidated demand. A tort may not be set off against debt. The contrary is also true where the action is for tort no set-off can be allowed, except under a recent statute, V. C. Sect. 6097a, which provides that in an action for tort the defendant may file a cross-claim averring that the plaintiff is liable for a tort to the defendant for damages arising out of the same ·transaction. Burks Pleading and Practice, 3rd. Ed., page 396, section 223 and 224. Your commissioner considers that in the instant case the Oil Company is endeavoring to avail itself of the tort which it has committed, waive the same 13* *on behalf of Johnson, the injured party, and then off-set its debt against the damages that Johnson had sustained by the wrongful conversion of his property. Your commissioner can find, nor has there been submitted to him, authority for such an unusual course of action, and it is believed to be contrary to sound public policy and in violation of the rights of attachment creditors. "In considering the rights of attachment creditors, these arises the question of the time the title passes upon conversion of prop erty of another. This subject is discussed in Burk? Pleading and Practice, 3rd ed., section 164. It is there stated that while the great weight of authority is to the effect that title does not pass simply by the judgment but only satisfaction of the judgment. While there is some conflict of authority on the subject, the ques tion has now been settled by the statute in Virginia. Section 6087 of the Code provides as follows : . 'A judgment for the· plaintiff in an action of trover shall not operate to transfer the title to the property converted unless and until such judgment has been satisfied.' 10 Supreme Court of Appeals of Virginia
It would appear, therefore, that in the instant case the title to the property converted by the Oil Company did not pass by sale and transfer thereof to A. R. Harding and at that time was subject to attachment by creditors of Johnson."
Thus the Master disposed of Standard's set-off. Why did the Chancellor, on the facts presented in this record, decide that Johnson's goods were not in the possession of the co defendants? The goods were there on the spot when the Deputy Sheriff appeared and levied thereon, and these goods certainly did not disappear ficticiously. The Chancellor stressed in support of his opinion not only the Allen case supra, but the case of J. J. S111,.ith Lumber Company v. Scott Ga,rbage Reducing & Fuel Coni pany, 112 N. Vv. 389, 30 L. R. A. (N. S.) 1185, where a judg- ment had been recovered against the principal defendant, 14* an *insolvent to ,vhom the lumber company delivered lum- ber. Eight days thereafter, without legal process, know ledge, or consent, the lumber company repossessed the lumber, gave credit accordingly, mingled the repossessed lumber with other stock in trade, and sold the same. More than two years afterward, a gar nishment proceeding was begun against the lumber company, and in the Court's opinion; it was said:
"We do not think the record shows sufficient grounds for a reci si'on of the sale as between the garnishee and the judgment defend ant, and, if the garnishee stiJl held the goods, we should have no doubt about the right of the plaintiff to charge the garnishee with the goods, or their value .... It conclusively appears that the gar nishee in this case did not have actual possession of the property, and it could only be charged as a debtor of the judgment defend ant. If sought to be so charged, the garnishee might interpose its account against the judgment debtor as a set-off or a counter claim."
The Court, in this opinion, in considering the Allen case supra, went on to .say:
"Nothing herein decided runs counter to the views expressed by Justice Sha~ in the case heretofore cited. In that case the garn ishee held actual possession of the property which he had taken wrongfully, and was unable to show any lien upon the goods. First National Bank of Waynesboro v. R. H. Johnson et als. 11
Moreover, in an action for the recovery of the goods, he could not have interposed his account as a counter claim."
· Standard, for the aleged rent due, had the remedy of distress or action at law, and for the rent to become due, attachment under Section 6416. It is believed that these are the landlord's exclusive remedies, and he no longer has power to seize his tenant's prop- erty without process of law. 15* *What would have been Standard's position had Johnson filed an action of detinue? This action permits the plaintiff to recover the specific property sued for, or else its value, but the plaintiff has the right to elect whether he will take the property or its value. No set-off or counterclaim can be interposed. This necessarily follows; otherwise, if an owner has lost personal prop erty of peculiar- value and he is not permitted to elect, the defend ant could retain the property and pay the va,lue ascertained, there by permitting the defendant to seize forciblj, the property of his debtor plaintiff without process of law and then plead any indebt edness as an offset to the recovery of the property ( Burks Third Edition, Sec. 133, M cClurc Grocery Company, Inc. ·v. Watson, 148 Va. 601). . The Chancellor (R. 243) quotes with approval from Standard's brief to the effect that Johnson could waive the tort and sue in assumpsit; or he could bring trover, but on a recovery in trover, no reference is made to the law that no title would pass until the judgment had been satisfied ( Code Section 6087, Burks Third Edi tion, Section 164). Standard's brief made no mention of detinue and Johnson's rights thereunder, and this form of action seems not to have occurred to the trial Court. The Chancellor in his opinion ( R. 243) states that he fourid no case in Virginia precisely in point, "and, in fact, only two in this country which may be considered as dealing with the question in volved"-the Allen and the Smith Lumber Company cases discuss- ed supra. 16* *The fact that there are no cases precisely in point either in this jurisdiction or elsewhere is favorable to the bank, rather indicating that seizure of this type have been avoided and the entirely adequate remedies at law have been made use of in the enforcement of rights. True it is, as pointed out by the Chancellor in his opinion, the statutes of each state control, and like or similar cases from other jurisdictio~1s can be of no great assistance; nevertheless, the Chan- 12 Supreme Court of Appeals of Virginia
cellar considered that both of the cases referred to supra had been correctly decided on the facts and the law involved in each case. Possession of the attached property was with the garnishee in the Allen case and in the lumber company case posession was not with the garnishee at the time of the service of process. If the property had been in the possession of the lumber company as garnishee at the time of service, it was expressly stated in the opinion that the property would have been subject to the attachment, or else the garnishee would have been held liable for it. Therefore, it plainly appears from these two cases that if the garnishees or co-defendants have the property. in possession at the time of the service of the attachment, liability becomes fixed against the garnishees or co defend·ants. Standard and Harding possessed Johnson's property at the time process was served and are liable in this proceeding.
17* *SIMMONS BRANCH
James S. Simmons, of Staunton, Virginia, trading in business as the Simmons Parts Company, sold and delivered to R. H. John son a Lincoln grease gun used in greasing automobiles, at the price of $412.00, of which $70.30 was paid in cash, and an un secured note was given for the balance· of the purchase price. When Johnson absconded, he was indebted to Simmons on the note . in the amount of $342.00 (R. 208). Simmons called at the service station on the 8th day of July, 1941, the day following Johnson's departure, inquired of Mary C. Johnson~ who was at the station, about the gun, and was informed that it had been removed to the Johnson residence several blocks away. Simmons arranged with Mrs .. Johnson to get the gun, sent a truck to the residence, and removed it from the back porch to his place of business at Staunton. Simmons sold the grease gun to A. R. Harding at the price of $368.25, part cash and the balance on conditional sales contract which was duly recorded in the Augusta County Clerk's Office on the forenoon of July 1, and, as appears from the testimony of Mr. Simmons ( R. 27), he was delivering the grease gun to Harding at the time the Deputy Sheriff appeared at the service station and -served him with a copy of the attachment writ and levied on Johnson's equipment, of which the grease gun was a part. Simmons answered the bill (R. 8), neither admitting nor deny ing the first five paragraphs thereof, but to the sixth paragraph, Simmons denied : First National Bank of Waynesboro v. R.H. Johnson et als. 13
"That the said R. H. Johnson is the owner of personal property in his possession or under his control, or that he is indebted to the said R. H. Johnson in any amount." '·'.,;;.'·~.-,, 18* *Simmons did not appear at the hearing before Com~i-s- sioner May, and after the Master's report was filed on Feb ruary 27, 1942, and notice thereof given, Simmons continued to give his case the silent treatment.· Not until the 29th day of April, 1942, after the cause had been set for argument on Standard's exceptions, did Simmons appear and file exceptions to the said report and move the Court for a recommittal, which was objected to; nevertheless, the Court recommitted the Simmons branch of the case to the Hon. Herbert J. Taylor, as Master Commissioner, who took evidence, prepared his report, and filed the same on May 12, 1942 (R. 231 ). The Taylor report found that the grease gun wa Johnson's property, subject to the attachment, as was the finding in the May report. Thus we have two favorable reports with res pect to the grease gun, in agreement both as to law and fact; yet, the Chancellor arbitrarily set aside both reports and made his own findings, which, it is believed, is contrary to the decision of this Court with respect to the weight to be accorded a Master's report. Here two reports, by different Masters, on the same question, are involved (Roark v. Shelton, 169 Va. 542). Simmons filed exceptions to both reports, which exceptions were sustained in the decree of October 25, 1943, which dismissed Sim mons as a party defendant. The bank assigns as error the action of the Trial Court in sus taining the Simmons exceptions to both said reports. 19* *The exceptions of Simmons both to the May report (R. 201) and to the Taylor report (R. 236) rest upon the ' theory, first, that the exceptant acquired possession and therefore a good title to the grease gtin from Mary C. Johnson, the wife o' R. H. Johnson, the owner, and was not guilty of conversion there of, and, secondly, that Simmons was not in possession of the grease gun, nor was he indebted to Johnson at the time of the service of the attachment writ. It will be observed that no set-off is plead in this branch of the case-the only questions being whether Simmons had in his possession the grease gun of Johnson, and whether Simmons was indebted to Johnson at the time of the service of process. Mr. Simmons testified in his own behalf with respect to his deal ings with R. H. Johnson, of how the grease gun came into his 14 Supreme Court of Appeals of Virginia possession, and then stated that he had happened to be present at the filling station on the afternoon of July 11, "delivering the gun to Mr. Harding," (R. 217) when the Deputy Sheriff arrived, serv ed him with process, and announced his levy, from which it ap pears that Johnson's grease gun wa~ in the possession of Simmons, or of Simmons and Harding, at the very time the Deputy Sheriff arrived, made his levy, and served all present with attachment papers. It is elementary that the wife, by reason of the marriage rela tionship existing between her and her husband, has no right, title, or interest in her husband's personal property; she cannot sell her husband's property and transfer his ownership or 20~ *interest therein without his consent, and it therefore fol- lows that if the wife delivers the husband's property to an other who has no claim thereto or interest therein, no title passes, and such transfer is void as to an attaching creditor. The pur chaser acquires no better title than was vested in the transferror. Simmons had no lien upon or claim to the property involved, and he therefore was guilty of conversion and transmitted no title to his purchaser. In Ullma,n v. Biddle, 53 W. Va. 415, 44 S. E. 280, the Court said:
"It is a fundamental doctrine of the common law, from which all discussion of the question must proceed, that, in general, no one can trans£ er a better title to a chattel than he himself has. N emo dat quad non habit is usually the inflexible maxim. That some or all of the parties acted in good faith or parted with value is usually immaterial; however innocent the motives, or however, valuable the consideration, if the party who assumed to convey had no right or title to transfer, no title can pa.,5s to the other."
It is certainly a general rule that title to personal goods will not pass without the assent of the owner. ( Wilson v. Rucker, 1 Call 500) It is immaterial to the bank whether the possession of the grease gun was with Simmons or with Harding or with both, as in any case the gun was the property of R. H. Johnson and was subject to the attachment, not only for the reasons stated here, but much of what has been said with respect to Standard is equally applicable to this branch of the case. First National Bank of Waynesboro v. R.H. Johnson et als. 15
21* *HARDING BRANCH
A. R. Harding was charged in the bill with having in his pos session the property belonging to R. H. Johnson, both tangible and intangible, was made a co-defendant in the suit, and served with process "on the spot" at the· filling station, at the very time . the sale to him of the Johnson property by Standard and Simmons was being completed. · Harding never appeared and answered in the suit, nor was he present either in person or by counsel at the hearings conducted before the Master Commissioners. He gave the case the silent treatment throughout. Harding was privileged to appear and an swer and take an active part in the litigation or. not; he was riot required to appear; as provided under Code Section 6399, since the evidence taken before both Masters clearly showed that the John son property finaly came into the possession of Harding. The ,decree of October 25, 1943, makes no ment!On whatever of A. R. Harding, but leaves him in possession of the Johnson prop erty, without right or title thereto, attached and levied on by the Deputy Sheriff before the invoice was turned over to him by Standard (R. 78). It was therefore error on the part of the Chancellor not to have subjected the Johnson property in Harding's possession or under his control to the lien of the attachment, or else hold Harding liable for all of the said property which was in his possession at the time of the execution of the writ upon him. 22* *The record shows that Harding knew that the property involved was owned by Johnson; he took over some items from Mrs. Johnson and gave her a check of $2.95 therefor ( R. 50, 51 and 53). Harding negotiated a loan to buy the property. (R. 107-110). Standard had no title to the Johnson property delivered to Harding, and the same is true of Simmons and the grease gun. Johnson's title to this property remained in him and has never been divested. It is a fundamental doctrine of the law of property that one cannot give what he does not have, and one who has no title can transfer none (Williston on Sales, Second Edition, Vol. l, Sec. 311, Ullman v. Bidle, supra). One who buys property must, at his peril, ascertain the owner ship, and if he buys of one who has no authority to sell, his taking possession in denial of the owner's right is a conversion. The ven dor is equally liable whether he sells the property as his own or as 16 Supreme Court of Appeals of Virginia officer or agent. It is no protection to one who has received property and disposed of it in the usual dtannels of trade to say that he did so in good faith and in the belief that the person from whom he took it was the owner and was vested with good title, if, in fact, the possession of the latter was tortuous. ( Cooley on Torts, page 426) A pe~son who takes possession of and claims rights in a chattel through a purchase or by other means from one who had no au thority from the owner to dispose of it is guilty of a wrong and is a coverter of the property ancl liable therefor. (65 C. J., Sec. 46) 23* *The Johnson property had been attached and a common law levy made thereon ( Code Sec. 6390, Burks Third Edi tion, Section 358), and Harding was served· with papers on the spot. vVhy there has been no appearance on his part seems unusual, rather suggesting that he has been indemnified against loss by Stan dard. Therefore, as disclosed, by the record, the Johnson property ulti mately came into the possession of Harding, and the property that he had in his possession at the time of the service of the attach ment writ upon him is liable for· the bank debt, and if Harding dis posed of any such property after service, he is personally liable therefor.
IN CONCLUSION
The petitioner respectfully urges that the record clearly shows that the property involved on the filling station premises was, in fact, owned by R. H. Johnson at the time the Deputy Sheriff ar rived, levied thereon, and served attachment writs on the co-defend ants who were personally present and actually in possession of the property, in which said property the co-defendants had no right, title, or interest, nor any lawful claim thereto; therefore, the prop erty levied on is subject to the petitioner's attachment. Wherefore, the petitioner prays that an appeal and supersedeas be awarded in this suit, and that the decree complained of 24* be *reviewed and reversed, and if an appeal is granted, this petition will be adopted as the opening brief, of which a copy has, on the 13th clay of January, 1944, been delivered to counsel of record representing the defendants in the Trial Court. And the petitioner will ever pray, etc. First National Bank of Waynesboro v. R.H. Johnson et als. 17
THE FIRST NATIONAL BANK OF WAYNESBORO By Counsel.
G. H. BRANAMAN, p. q. Waynesboro, Virginia
I, G. H. Branaman, an attorney at law practicing in the Supreme Court of Appeals of Virginia, do certify that I have read th_ records in the above styled cause and that, in my opinion, there is error in the decree complained of in the foregoing petition, for which the same should be reviewed. G. H. BRANAMAN.
NOTE: The foregoing petition has been filed on this, the 13th day of January, 1944, in the Clerk's Office of the Supreme Court of Appeals at Staunton, Virginia.
Received January 13, 1.944. W. vV. SMALES, Deputy Clerk.
March 13, 1944. Appeal and supersedeas awarded by the Court. Bond $300.
RECORD page 1 ~VIRGINIA: Augusta County, ·to-wit:
Please before the Circuit Court of Augusta County; Virginia, at the Court House thereof, on Monday, the 25th day of October, 1943.
Present: The Honorable Floridus S. Crosby, Judge.
THE FIRST NATIONAL BANK OF WAYNESBORO, VA.
vs.
R. H. JOHNSON, principal defendant; Mary C. JOHNSON, his wife, both principal defendant and co-defendant; STAND ARD OIL CO. OF NEW JERSEY, a corporatioq; A. R. HARING, F. \V. AND B. F. McCLUNG, trading in business as "McClung 18 Supreme Court of Appeals of Virginia
Brothers," SIMMONS PARTS CO., co-defendants; WM. F. LANDES, Lienor and AUGUSTA FURNITURE CO., a cor poration, lienor
AND
S. H. HALL, trading as Blue Ridge Grocery
v.
R. H. JOHNSON, principal defendant; MARY C. JOHNSON and STANDARD OIL CO. OF NEW JERSEY, a foreign cor poration, co-defendants
Be it remembered that heretofore, to-wit: on the 11th day of July, 1941, came the plaintiff, The First National Bank of Way nesboro, Virginia in the Clerk's Office of said Court and filed its Bill in Chancery against the defendants, which Bill with the en dorsement thereon is in the. words and figures following, to-wit : page 2 ~ BILL
Your complainant, The First National Bank of Waynesboro, Va., a national banking corporation, respectfully represents and says: 1. That R. H. Johnson is justly and truly indebted to the com plainant in the sum of $704.16, with interest thereon from the 5th day of July, 1941, and a 10% attorney's fee, in addition, all of which is now due and unpaid, and became due on the 5th day of July, 1941, and is evidenced by a certain negotiable note of the 5th day of June, 1941, payable one month after date to Mary C. Johnson, the wife of R. H. Johnson, and by her endorsed, and held and owned by the complainant, the original of which said note is herewith filed, marked "No. 40746," asked to be received and read as a part of this bill, upon which said note the said Mary C. Johnson is also personally liable, by reason of her endorsement;· 2. That the particulars of the ·said indebtedness are as follows: The said R. H. Johnson was until recently engaged in operating a gasoline filling and service station, in the Basic Section of the Town of Waynesboro, Virginia, and in connection with financing the said business, the said R. H. Johnson applied to the complain ant for a· loan of money, which the said complainant loaned to the First National Bank of vVaynesboro v. R.H. Johnson et als. 19
said Johnson, who thereupon, to evidence the said loan, made the aforesaid note, in the sum of $720.00, endorsed as afore page 3 ~said, upon which a credit has been given of $15.84, leav ing a balance of $704.16 due, and owing, along with interest and the attorney's fee as in the said note provided; 3. That the complainant is entitled to, or ought to recover of and from the said defendant, R. H. Johnson, and Mary C. John son, the said sum of $704.16, with interest and attorney's fee as aforesaid ; 4. That the said note is a part of the capital of the complain ant, invested in its banking business, and as such as has been re turned for taxation, and all taxes paid thereon; 5. That the said R. H. Johnson is removing, or is about to remove, out of this state, with the intent to change his domicile; or that the said R. H. Johnson intends to remove, or is removing, or has removed, the specific property sued for, or his own estate, or the proceeds of the sale of his property, or a material part of such estate or proceeds, out of this state, so that there will not be therein effects of such debtor sufficient to satisfy the claim when judgment is obtained therefor, should only the ordinary process of law be used to obtain the judgment; and the said R. H. John son has absconded, or is about to. abscond from this state, or has concealed himself therein to the injury of his creditors; 6. That the said R. H. Johnson is the owner of personal property, both tangible and intangible, located page 4 ~at Waynesboro, in Augusta County, Virginia, in the possession of the Standard Oil Company of New Jersey, . A. R. Harding, F. W. and B. F. lVIcClung, trading in business as "McClung Brothers," Simmons Parts Co., Mary C. Johnson, his wife, and also that there are numerous persons to the complainant unknown indebted to the said R. H. Johnson, on small accounts; and the said Mary C. Johnson claims, in her own right, as wife of the said R. H. Johnson, certain items of household and kitchen furniture; furthermore, W. F. Landes claims a lien as landlord against the household and kitchen furniture in the residence lately occupied by the said R. H. Johnson, and finally, the Augusta Fur niture Co., Inc., is the holder of a conditional sales contract against certain items of the household furniture, upon which there is a small balance remaining unpaid. Wherefore, being without remedy, save in a Court Equity, where alone such matters are properly cognizable, under Section 6383 (a) of th·e Code of Virginia, the complainant prays that R. H. John- 20 Supreme Court of Appeals of Virginia son, Mary C. Johnson, his wife, Standard Oil Co. of New Jersey, A. R. Harding, F. W. and B. F. McClung, trading in business as "McClung Brothers," Simmons Parts Co., vVm. F. Landes, and Augusta Furniture Co. be made parties defendant to this bill and required to answer the same, but not on oath, which oath is accord ingly hereby waived; that writs of attachment may be issued and executed upon each of the said defendants; that the said defend- ants be required to answer and disclose all of the page 5 ~property and indebtedness in their possession, or under their control, belonging to the said R. H. Johnson; that the rights and interests, claims or demands, lien or otherwise, against any of the said property, be determined herein; that the lien of the attachment of the complainant be established against the said property, and that it be sold to satisfy the indebtedness due and owing to the complainant; that a receiver be appointed to take over and collect all debts and demands due the said R. H. Johnson, for the benefit of the complainant, as well as take charge of and preserve the tangible personal property belonging to the said John son; and the complainant prays for all such other further and gen eral relief as the nature ot its case shall require, or to Equity shall seem meet and proper. And the complainant will ever pray, etc. THE FIRST NATIONAL BANK OF WAYNESBORO, VA. By G. H. BRANAMAN Agent and Attorney. G. H. BRANAMAN, p. q.
STATE OF VIRGINIA ) ) To-wit: COUNTY OF AUGUSTA)
This day before me, Katherine A. Jordan, a Notary Public in and for the County of Augusta, in the State of Virginia, personally · · appeared G. H. Branaman, who, first being duly sworn, page 6 ~does, upon his oath, depose and say that he is Agent and Attorney for the First National Bank of Waynesboro, Va;, that he is cognizant of the facts stated in the foregoing bill, :and that the allegations thereof are true. G. H. BRAN AMAN
Subscribed and sworn to before me at \i\Taynesboro, Va., this 11th day of July, 1941. First National Bank of Waynesboro v. R.H. Johnson et als. 21
My term of office expires the 18th day of April, 1943. KATHERINE A. JORDAN Notary Public
Endorsement: Filed in the Clerk's Office of the Circuit Court of Augusta County, July 11, 1941. Teste: J. M. BLACKBURN, Dep. Clk.
Attached to and filed with the foregoing bill is the following note of R. H. Johnson, marked "No. 40746" Waynesboro, Va., June 5, 1941 No. 40746 One month after date I promise to pay to the order of 3.60 Mary C. Johnson Negotiable and payable at The First $720.00 National Bank of Waynesboro, at Waynesboro, Va. 15.54 without ofiset Seven Hundred twenty 00/100 Dollars, value received and if collected by suit, or attorney, Five $704.16 Dollars Cost and 10% addition. The drawer and en- 40.00 dorsers of this note waive demand notice and protest and Due legal diligence on the part of the holder thereof and July 5 hereby waive the benefit of the Homestead Exemption as to this obligation. R. H. JOHNSON Postoffice P. 0. Box No. 401 page 7 ~ The following endorsement appears on the back of of the foregoing note: "Mary C. Johnson"
MOTION OF STANDARD OIL COMPANY OF NE\V JERSEY TO QUASH
The Standard Oil Company of New Jersey, a corporation creat ed and existing under the laws of the State of Delaware by its attorney, appears especialy and moves the court to quash, so far as concerns it, a certain process issued out of the office of the clerk of this court on July 1, 1941, returnable to the third Monday in July, 1941, in the above entited suit, and the return of the dep uty sheriff for the Sheriff of Augusta County ot said process, in so far as it concerns said Standard Oil Company of New Jersey, which returD. in part recites that said process has been served "also by attaching and levying upon the filling station fixtures, equip ment and supplies in the possession of the Standard Oil Company of New Jersey . . . found at the filling station at the intersection 22 Supreme Court of Appeals of Virginia of Commerce Avenue and East Main St., in the Basic Section of Waynesboro, Va., itemized statements whereof are hereto attach ed as a part of this return," on the grounds that: First: The Standard Oil Company of New Jersey is a foreign corporation domesticated in Virginia and service as it is shall be made upon the Secretary of Commonwealth, its statutory agent; and Second: Tangible personal property of the said R. H. page 8 Hohnson, in possession of said Standard Oil Company of New Jersey, which is not a principal defendant, if any there be, is levied upon by delivering a copy of the attachment to such co-defendant, and not otherwise. THE STANDARD OIL COMPANY OF NEW JERSEY, By J. M. PERRY,, Its Attorney. .
Endorsement: Filed in the Clerk's Office of the Circuit Court of Augusta County, Second July Rules, 1941. Teste: J.M. BLACKBURN, Rep. Clk.
ANSWER OF SIMMONS PARTS COMPANY
The answer of Jas. S. Simmons, Jr., doing business as Simmons Parts Company, to a bill of complaint exhibited in the Circuit Court of Augusta County, Virginia, against him and others by The First National Bank of Waynesboro, Virginia. This respondent, reserving to himself, etc., for answer to said bill of complaint or to so much thereof as he is advised that he should answer unto, answers and says: · 1.. That he neither admits nor denies the Plaintiff's allegation contained in paragraphs l, 2, 3, 4, and 5 of Complainant's bill, btt.t calls for stri.ct proof thereof. 2. This respondent denies that the said R. H. Johnson is the owner of personal property in his possession or under his page 9 ~control, or that he is indebted to the said R. H. Johnson in any amount. And now having fully answered the Plaintiff's bill, this respond ent asks to be hence dismissed with his reasonable costs ii1 this be- half expended. · JAMES S. SIMMONS, JR. Trading as Simmons Parts Company, First National Bank of Waynesboro v. R.H. Johnson et als. 23
,BY Counsel. CURRY CARTER, p. d.
Endorsement: Filed in the Clerk's Office of the Circuit Court of Augusta Coµnty, August 30, 1941. Teste: J.M. BLACKBURN, Dep. Clk.
ANSWER OF STANDARD OIL COMPANY OF NEW JERSEY
The separate ans·wer of the Standard Oil Company of New J er sey, a corporation created and existing under the laws of the State of Delaware, one of the defendants to a bill exhibited against it, R. H. Johnson and others, in the office of the Clerk of the Circuit Court of Augusta County by The First National Bank of Way nesboro, Virginia, Complainant, and the separate answer of said Standard Oil Company of· New Jersey, one of the co-defendants in an attachment issued upon said bill against R. H. Johnson, prin cipal defendant, and others. This co-defendant, without waiving any objection by it to the said bill and to said attachment issued thereunder, for answer to the same and to said attachment served upon it as co page 10 ~defendant, or to so much, thereof, as it is material that it should answer, says: This co-defendant neither admits nor denies the first, second, third and fourth paragraphs of said bill, and neither admits nor denies so much of the fifth paragraph as charges that the said Johnson is removing, or is about to remove out of this state, or that he intends to remove, is removing, or has removed the specific property sued for, if any, or his own estate, or the proceeds of the sale of his property, or any part thereof, out of this state. This co-defendant says, however, upon information and belief that the said R. H. Johnson has left the State of Virginia. This co-defendant, ans~ering the sixth paragraph, says that it does not have in its possession and that at the time of the service of process and the said attachment against it this co-defendant did not have in its possession any tangible or intangible personal property of the said R. H. Johnson, and that the present time, and a·t the time of the service aforesaid, this co-defendant was and is indebted to the said R. H. Johnson in the sum of $99.29. Further answering this .co-defendant says that it owned certain 24 Supreme Court of Appeals of Virginia premises in the Town of Waynesboro at the intersection of Jef ferson Highway and Commerce Avenue in which premises, as its lessee, the said R. H. Johnson for a short time had conducted a gasoline service station. On, to-wit, July 8th the said J olmson had abandoned the premises and this co-defendant on the morn- ing of that day re-entered into possession thereof, and page 11 ~at the same time took posse.ssion of a large quantity, to-wit, 2,864 gallons of the gasoline of the then market value of, to-wit, $518:09, it~ the tanks under said leased premises, and of a quantity of motor oils and lubricants of the market value of, to-wit, $224.62, in receptacles on the said premises. In said premises also there were certain automobile accessories, automo bile tires and the like, of the then aggregate market value of, to wit, $463.43; all of which said gasoline, oils, lubricants and acces sories this co-defendant theretofore had sold and delivered to the said R. H. Johnson. All of the same were of known and establish ed market value. Being so in possession of the said gasoline, oils, lubricants and accessories, the co-defendant converted the same to its own use. On the morning of July 11, 1941, the co-defendant sold and deliver ed said gasoline, oils, lubricants, and accessories to a certain A. R. Harding for $1206.14, who then paid the said price to this co defendant. The co-defendant says that the goods which it thus converted to its own use and sold were such as this co-defendant at that time was engaged in selling and distributing at Waynesboro and elsewhere in the State of Virginia, and admits that, by reason of said conversion thereqf, it became liable to the said R. H. John son in the aforesaid sum of $1206.14 and impliedly promised to pay him the said sum. This co-defendant further says page 12 ~that at the time of such implied promise the said R. H. Johnson was justly indebted to the said Standard Oil Company of New Jersey in the sum of $1106.85 which was tht:n due and payable to this co-defendant by the said Johnson. And the said Standard Oil Company of New Jersey says that it had and has the right to set off the said R. H. Johnson's said in debtedness to it against the said sum of $1206.14, so owing by it to said Johnson; and that the balance, $99.29, after the applica tion of said offset, being the same amount hereinabove set forth, is in its hands the property of said Johnson. and those claiming under him. An itemized statement of the account· of this co-defendant with First National Bank of Waynesboro v. R.H. Johnson et als. 25 the said R. H. Johnson showing the nature of his said indebted ness to it is herewith exhibited as a part of this answer. This co-defendant says that on the eleventh of July, 1941, at the time of the issue of an attachment in this cause, this defendant had no property or effects of the said R. H. Johnson in its pos session and was not indebted to the said Johnson except in the said sum of $99.29. And having fully answered, this co-defendant prays to have its said set-off allowed in this suit and to be permitted to pay into court or otherwise as the court may direct the said sum of $99.29, and that upon such payment this co-defendant may be page 13 ~dismissed with its reasonable costs in this behalf ex pended. And it will ever pray, etc. THE STANDARD OIL COMPANY OF NEW JERSEY, By Counsel J.M. PERRY, Counsel.
STATE OF VIRGINIA,
CITY OF RICHMOND, to-wit:
This day personally appeared before the undersigned, a notary public for the City of Richmond in the State of Virginia, in my said city, F. H. Skehan, who made oath before me that he is Di vision Manager of the Standard Oil Company of New Jersey, a corporation, and is authorized to make this affidavit, and that the matters and things set forth in the foregoing answer are true to the best of his knowledge and belief, and that the said statement of account filed as a part of said answer is true and that the in debtedness of said R. H. Johnson to the Standard Oil Company of New Jersey, thereby shown, was justly and truly owing by said Johnson to said Standard Oil Company of New Jersey, as of July 8, 1941. Given under my hand this 3rd day of September, 1941: . G.E.MERRYDEW Notary Public. My Commission expires Jan. 30, 1944. (NOTARIAL SEAL) page 14 ~ E:diibit : : · 26 Supreme Court of Appeals of Virginia
Statement of Account Claimed by the Sta11da:rd Oil Company of New Jersey against R. H. J o/inson, Principal Defendant
R. H. Johnson, In Account With Standard Oil Company of New Jersey.
1~1 D~ June 19-To motor fuel ; ...... $ .643.94 June 30-To book matches ...... 6.25 July 1-To rent (payable in advance) adjusted as of July 7th ...... 31.61 July 3-To checks returned, Johnson, $12.00 and $9.03 . . 21.03 July 7-To check returned, W. R. Conoly ...... 5.90 July 10-To check of R. H. Johnson, returned protested (for motor fuel delivered July 5, 1941) ...... 643.94 July 10-To protest fees, check ...... 1.26
$1353.93
Cr. Feb. 18- ...... $14.00 May 15- ...... 25.00 June 1-May collections ...... 66.56 July I-June collections ...... 40.06 July IO-Sales tickets ...... 16.92 July 11-Cash ...... 84.54 247.08
July 11-To balance ...... $1106.85
Endorsement: Filed in the Clerk's Office of the Circuit Court of Augusta County, Sept. 4, 1941. 'feste: · J.M. BLACKBURN, Dep. Clk.
pagelS ~ And at another day to-wit: At a Circuit Court held for Augusta County, Virginia, on the 6th day of Octo ber, 1941.
DECREE OF REFERENCE
These causes came on this day to be heard together, upon the First National Bank of Waynesboro v. R.H. Johnson et als. 27
bills of complaint. and exhibits therewith filed; upon the issuance of chancery process, and the execution thereof upon Mary C. Johnson, A. R. Harding, F. W. and B. F. ·McClung, trading in business as "McClung Brothers," Wm. F. Landes, Augusta Fur niture Co., James S. Simmons, Jr., trading as the Simmons Parts Co., all in person, co-defendants; upon the service and return of procress, duly executed upon the Secretary of the Commonwealth as to the Standard Oil Co. of New Jersey, a foreign corporation, co-defendant, and upon its motion and answer filed herein; upon the return of the chancery subpoena, unexecuted in person, as to R. H. Johnson, and upon the entry and execution of an order of publication as to him, duly certified by the publisher of the "Way nesboro News-Virginian" and filed herein; upon the separate an swers of the Augusta Furniture Co., James S. Simmons, Jr., trad ing as the Simmons Parts Co., upon the ans~er of Wm. F. Landes filed in the suit of The First National Bank, and his petition filed in the suit of S. H. Hall; upoi1 the motion of the Waynesboro Small Loan Corp. and of McClung Bros. for leave to file their separate petitions herein, setting up their several claims, page 16 ~which leave is granted, and the petitions and exhibits therewith accordingly filed; upon the failure of Mary C. Johnson to appear, plead, or answer, and the bill is taken for confessed as to her; upon the docketing and setting of these causes for hearing, as well as upon the argument of counsel. On consideration whereof, it appearing to the Court that a reference to a Master Commissioner is desir~ble, and necessary . in these causes, it is, therefore, ADJUDGED, ORDERED and DECREED that these causes, there being no objection, shall be heard together, and they are hereby referred to one of the Master Commissioners ·of this Court, whose duty it shall be to take, state and report an account showing : 1. Whether R. H. Johnson, the principal defendant, has re moved, or absconded, from the State of Virginia, or is a non resident thereof, and his whereabouts, if known; 2. What property, tangible and intangible, or R. H. Johnson, was in the possession, and under the control of the co-defendants, or any of them, at .the time the principal defendant absconded, its value and the. present location thereof; ' 3. The rights, if any, of the Standard Oil Co. of New Jersey; 4. The liens, if any, binding said property, the arpounts thereof, and the order of priority of said 'liens; 'page 17 ~and 28 Supreme Court of Appeals of Virginia
5. Any other matters deemed pertinent by the Mas ter, or which may be required of him to be stated by any party in interest; But, before the Master shall proceed with the execution of these orders, he shall publish notice of the time and place of his primary sitting once a week for two consecutive weeks in the "Waynesboro .News-Virginian," a newspaper published in the Town of Waynes boro, Va., and when so published, the said notice shall be equivalent to personal service upon all parties to these causes. page 18 ~ November 10, 1941. Evidence taken before J. Harry May, Master Co.m missioner in Chancery of the Circuit Court of Augusta County, Virginia, pursuant to decree of reference entered in said causes which were consolidated, on the 6th day of October, 1941, wherein said master commissioner was required to take, state and report his account showing: 1. Whether R. H. Johnson, the principal defendant, has remov ed, or absconded, from the State of Virginia, or is a non-resident thereof, and his whereabouts, if known; 2. What property, tangible and intangible, of R. H. Johnson, was in the possession, and under the control of the co-defendants, or any of them, at the time the principal defendant absconded, its value and the present location thereof; 3. The rights, if any, of the Standard Oil Company of New Jersey; 4. The liens, if any, binding said property, the amounts there of, and the order of priority of said liens; and 5. Any other matters deemed pertinent by the Master, or which may be required of him to be stated by any party in interest And pursuant to the notice required in said decree to be given by said Master Commissioner :
APPEARANCES
The Master Commissioner, J. Harry May: G. H. Branaman, counsel for the First National Bank of Way nesboro and S. H. Hall, in the second cause, trading ;is Blue Ridge Grocery Company , F. E. Edmunds, counsel for petitioning creditors, Way nesboro Small Loan Corporation ; S. W. and B. F. page 19 ~McClung, trading in business as McClung Brothers First'National Bank of Waynesboro v. R. H. Johnson et· als. 29
W. D. Shumate
H. J. Franklin, counsel for the Augusta Furniture Company Forest T. Taylor, counsel for Mary C. Johnson J. M. Perry, counsel for Standard _Oil Company of New Jersey. page 20 ~ W: D. Shumate, a witness called on behalf of the Plaintiff, The First National Bank of W ~ynesboro.
DIRECT EXAMINATION
By Mr. Branaman: Q. Where do you live and what is your occupation? A. Waynesboro, and I am Assistant Cashier of The First Na- • tional Bank of Waynesboro. Q. How long have you been employed by the bank? A. Approximately twenty-three years. Q. Did you make R. H. Johnson a loan at the bank, and if so, when? A. Yes, sir, we made a loan on April 7, 1941. Q. Is this the original note which I hand you, or is it a renewal? A. This is a renewal. Q. What was the original note for? A. $800.00. Q. What is the amount and date of the note which you have in your hand? A. June 5th, 1941, for $720.00 with a credit of $15.84 as of July 8, 1941. Q. Who is the maker of that note? A. R. H. Johnson and endorsed by Mary C. Johnson. Q. Did Mrs. Johnson make any payment o·n the note or not, do you recall ? page 21 ~ A. Yes, sir, she made a payment on it since that date of approximately $20.00. Q. Is this a copy of the receipt that you gave her? A. Yes, sir. Q. How much is the receipt for? A. $22.95. Q. How much is the balance due on the note? A. The face of the note less-$704.16 less the $22.95. Q. Are there any other credits on the note? 30 Supreme Court of Appeals of Virginia
W1.. D. Shumate
A. None except the $15.84 and the $22.95. Q. The note was due when? A. July 5, 1941. Q. Where was R. H. Johnson when the note finally became due, if you know? A. No, sir, I dd not. It was not attended to. It was reported that Johnson had left town. · Q. What was he doing when he left town? A. He was operating a filling station. Q. What filling station? A. R. H. Johnson "Esso" Filling Station. Q. Where is that located? A. The n_ew station? He moved into the new station east of the Nor folk and Western Railroad. Q. Is that station at the corner of Commerce Avenue and Rock fish Road? A. Yes, sir. page 22 ~ Q. Did he operate that filling station before the un derpass was completed? A. I think so. He operated another one further up !he road at one time. Q. While the underpass was being constructed, was the opera tion of the station suspended? A. As far as I know, I think it was . Q. Do you know from his representations when he borrowed the money in April, what it was for? A. To re-stock or replenish his stock or increase his stock. It was for goods in the filling station. Q. That is the filling station at the corner of Commerce Ave nue, the one he was operating at the time? A. The one he was operating at the time he borrowed this money? Q. Which one was it? A. I am positive it was the new station after the completion of the underpass. He moved back and got this loan for the purchase of supplies-stock. By Mr. Perry: This evidence as to the purpose for which the loan was obtained is immaterial and irrelevant insofar as the Stand ard Oil Company is concerned-they knew nothing about it and is certainly not a party to the contract. First National Bank of Waynesboro v. R.H. Johnson et als. 31
W,. D. Shum,a;te
By Mr. Branaman: To which counsel for the bank replies that the money was borrowed to re-stock the "Esso" Filling Station operated by Johnson and owned by the Standard Oil page 23 ~Company, and it is material since the Standard Oil Com pany without any right took some of the goods on hand for which the loan was borrowed. By Mr. Branaman: Q. Do you know anything about R. H. Johnson; that is, where he is now? A. I do not. Q. Did he leave? A. He left Waynesboro. . Q. Do you know anything about the circumstances under which he left-it will possible be hearsay. By Mr. Perry: I am willing to agree that he left Waynesboro. Mr. Branaman: This is one thing counsel for Standard Oil Com pany is willing to admit-that Johnson skipped out and left .... Mr. Perry: Counsel for the Standard Oil Company will not make any such admissions in that phraseology. Mr. Perry: It is stipulated that R. H. Johnson left Waynesboro for parts unknown on the night of July 5~ 1941. Mr. Branaman: To which counsel for the bank will not agree for the reason that possibly he left on July 7th. Mr. Perry: July 7th is right-it was on a Monday. page 24 ~, CROSS EXAMINATION
By Mr. Perry: Q. I notice in pencil on this note is a memorandum of $40.50. What was that? A. Curtail and previous renewal. Q. That is what brought it down to this point? A. That was the curtail at the time the note was renewed on June 5th. Q. How much money did Johnson have on deposit with your bank? A. $15.54. Q. Did you apply it as a credit on that note? A .. Yes, sir. Q. That is the origin of the $15.54 credit? 32 Supreme Court of Appeals of Virginia
W. D. Shumate and Wm. F. Coyner, Jr.
A. Yes, sir. Q. How much did the bank make out of the levy on Mrs. J obn son's stuff? A. Nothing has been received from the levy-there is a credit here-this receipt. Q. From what source did' that come? A. From Mrs. Johnson. Q. Was that an account that she had there? A. I don't know where she got it. Q. Did Mrs. Johnson have an account with you at that time? A. I think not. page 25 ~ Q. You don't know what dividends you got from your levy on her furniture? A. No, sir. Q. Do you know whether there is any at all? A. No, sir, I do not.
'Witness leaves the stand.
vVm. F. Coyner, Jr., another witness on behalf of the Plaintiffs, being first duly sworn, testified :
DIRECT EXAMINATION
By Mr. Branaman: Q. You are, I believe, a Deputy Sheriff of Augusta County? A. Yes, sir. Q .. Did you serve an attachment in the suit of the First Na tional Bank of \.Vaynesboro against R. H. Johnson and others? A. Yes, sir. Q. Will you take this subpoena and state whether or not this is the levy you made attached to it? · Mr. Perry: This is objected to for the reason that this subpoena should, of course, have been served on the Standard Oil Company, issued November-July 11th and this is a motion to quash-- Mr. Branaman: There is a common law levy in this case. By Mr. Branaman: Q. Is that your levy and, if so, when was it made? Mr. Perry: Objection is stated here that the process handed to the witness is a subpoena issued on July 11, 1941, out of the First National Bank of Waynesboro v. R.H. Johnson et als. 33
Wni .. F. Coyner, Jr.
Clerk's Office against R. H. Johnson, Mary C. Johnson, page 26 ~Standard Oil Company of New Jersey, A. R. Harding, F. W. McClung, and B. F. McClung, trading in busi ness as McClung Brothers, Simmons Parts Company, Wm. F. Landes and Augusta Furniture Co. Under the statute, there is only one way in which a levy can be made against a co-defendant which happens to be a foreign corporation and not a domestic corpora tion and the Sheriff has no power to levy on goods in the hands of a third person. Mr. Branaman: To which counsel for the bank replies that the subpoena itself when issued directs the Sheriff to attach the prop erty, both tangible and intangible of R. H. Johnson now in the hands of Mary C. Johnson, Standard Oil Co. of New Jersey, A. R. Harding, F. W. McClung and B. F. McClung, trading in busi ness as "McClung Brothers" and Simmons Parts Co. to subject the same to the complainant's claim of $704.16 with interest there on from the 5th day of July, 1941, until paid, and 10% attorney's fee, in addition, and the costs of this proceeding. By Mr. Branaman: Q. What did you do in compliance with the direction of that subjoena? A. I served a copy of the attachment.~! first got it in Staun ton about four o'clock and immediately went to Waynesboro I found Mr. Hewlett and Mrs. Johnson, Mr. Simmons and Mr. Harding all at the station. Q. What station? A. The Johnson "Esso" Station. Q. What did you do? page 27 ~ A. I served each of them a copy of that time Mr. Perry : You made a return of that process. Why is it that you now purport to testify orally when the return is on the process? Mr. Branaman: I would like to be able to-I want to ask the witness something. Mr. Perry: The only testimony of what he did is on this return. The Commissioner : I think he should testify from the return and if he wants to amend it, all right. The Witness: I made a levy on everything in the station., Mr. Perry: This answer is objected to for the reason that the Sheriff's return is the best evidence of what he did- 34 Supreme Court of Appeals of Virginia
Wm. ,F.. Coyner, Jr.
The Witness: The certificate shows that the levy was made at 4:30-- Mr. Branaman: Go ahead. The Witness: I went down to the station and looked over the 1 good , ...... ,_ ; ,;1 Mr. Perry: I again object. This witness will not read this return. I want the return read. I want him to state what- The Commissioner : I think you are correct in this that he should answer that by reading from his return and then if he wants to amend the return to show what he actually did; if the return does not show everything. Mr. Branaman : He can testify that he made the levy. The Commissioner : I think he should read the return. page 28 ~ Mr. Branaman : Q. Tell what you did. A. Am I to read the return? Q. Yes, sir. A. I first served a copy of this like I said and here the levy is also attached to the subpoena upon the filling station, fixtures, equipment and supplies in the possession of the Standard Oil Com pany of New Jersey and A. R. Harding, found at the filling station at the intersection of· Commerce Ave. and East Main St. in the Basic Section of Waynesboro, Va., itemized statements whereof are hereto attached as part of this return. Q. Read the itemized statement? A. I am unable to do that because we went down to the station and Mr. Hawkins had taken an inventory of it, and I asked him if he wanted me to stay there and make a complete levy and he said he was making an inventory and would give me a copy of it that night-will give me a complete inventory tomorrow. Q. Did he do so? A. No, sir. Q. Did you get a copy of it? A. No sir. He said he would produce it at the hearing. He said that Mr. Perry objected to his giving me any copy of this inventory. Q. Did he deny you the right to make the levy? A. No, sir. Q. Did the Standard Oil Company of New Jersey claim th~s property? First National Bank of Waynesboro v. R.H. Johnson et als. 35
Wm . .F. Coyner, Jr. page 29 ~ A. No. sir. Q. Did these gentlemen make any claim when you made this levy that they had taken the property over? A. No, sir, not that I remember. Q. Were they cooperative? A. Yes, sir. At the time this inventory was taken it was in lead pencil and the items had not been carried out to the totals. Q. What time was the levy made? A. At four-thirty p. m., o·n July 11th. Q. Both Mr. Hewlett and his associate were there? A. Yes, sir. Q. Representing the Standard Oil Company of New Jersey? A. Yes, sir. Q. Mrs. Johnson? A. Yes, sir. Q. Mr. A. R. Harding, the purchaser? A. Yes, sir, and Mr. Simmons. Q. Did you afterwards get a copy of the inventory and, if so, from whom? A. I did not get a copy of the inventory. The Standard Oil Company said they would furnish me with a list. Q. They promised that they would? A. Yes, sir. Q. Who did that? A. Mr. Hewlett and Mr. Hawkins were there-Mr. Hawkins was taking it down and said he was making it in pencil and would give me a copy that night. page 30 ~ Q. They never did give you a copy? A .. I went back there next day for it and Mr. Haw kins was there and that small man over there was there. Q. Any other property on the premises which was removed by any one and, if so, by whom? A. Not while I was there. McClung Brothers had removed some property and Mr. Hall removed certain things. Q. Do you know anything about the value of the property levied on? A. Somewhere in the neighborhood of $l2pD.OO. 36 Supreme Court of Appeals of Virginia
Wm. F. Coyner, Jr.
CROSS EXAMINATION
By Mr. Perry: Q. I understood you got to the filling station in Waynesboro about four-thirty p. m. ? A. Yes, sir. Q. On July 11th? A. Yes, sir. Q. This process which you purport to have executed and on which you make. this return, is a process sued out of the Circuit Court on the 11th? · A. Yes, sir. Q. Did you send a copy of that process to the Secretary of the Commonwealth of Virginia? A. Myself, I did not. Q. . You attempted to serve it on the Standard Oil Company of New Jersey but giving it to one of their men? A. Yes, sir. page 31 ~ Q. The building in which you went is the Esso Ser vice Station on Main Street? A. Yes, sir. Q. And over which is an "Esso" sign and other signs of the Standard Oil Company? A. Has R. H. Johnson's name on it. Q. Answer the question. A. There is an "Essa" sign there . . Q. You knew it was a Standard Oil Company's service station? A. I did not. . Q. You have known it for three or four years? ·.: A. I know it is R. H. Johnson's. Q. You have passed by it a number of times? :·: A. · Yes, sir. Q. Didn't you know it was a Standard Oil Company's filling .:stafiort ? :·. = A. I knew that.· Q. ·when you went to that station that day, you went indoors? A. Yes, sir. Q. Whom did you say were there? A. A.· R. Harding, Mrs. Johnson and these two gentlemen, Hewlett and Hawkins and Mr. Simmons. First National Bank of Waynesboro v. R.H. Johnson et als. ..37
Wm. ,F. Coyner, Jr.
Q. Who is Mr. Simmons? A. Simmons Parts Company of Staunton. page 32 r Q. What was he doing there then-taking something out of the station? A. No, sir. They were all in the waiting room. Q. In another part of the station? A. Yes, sir, all standing around talking. Q. You went indoors? A. Yes, sir, I did. Q. Wh.o is Mr. Hewlett? A. One of the Standard Oil Company men. Q. Who is A. R. Harding? A. The purchaser of the station-He is Mayor of Waynesboro. Q. Who is Mr. Hawkins? · A. They told me he was a Standard Oil Company's man. I never saw either of them until that day. Q. You have here attached to your levy a large number of hose clamps. Did you ever see them ? A. Yes, sir. Q. Did you put your hands on them? A. No, sir. Q. \Vere they in boxes? A. They had been removed by McClung Brothers and they furnished me with this list. Q. \i\Tho are McClung Brothers? A. An automobile supply store. Q. You have here levied on one hydraulic spring rocker; one battery charger ·and tester; one champion spark plug tester; one battery display stand, etc.-possibly thirty or forty other page 33 ritems. Did you list these things? A. Yes, sir. Q. From the very goods themselves? A. I saw every one of them. Q. Y Ott listed them ? A. Yes, sir. Q. Where were they? A. In the station. Q. \i\Tho was in the station at that time? I mean in charge? A. The day I went there, Mrs. Johnson and Rodney's brother 38 Suprem~ Court of Appeals of Virginia
Wm .. F. Coyner, Jr.
were there. They had been in the station when I passed by it on several different times. Q. Mr. Harding and Mr. Hewlett were in charge? A. I don't know. Q. Any customers com there? A. I don't recall. Q. You have here one Lincoln grease gun, between $1100.00 and $1200.00 worth of merchandise, consisting of tires, tubes, spark plugs, auto accessorries, gas, oil and polishes. Did you see any gasoline? A. No, sir. Q. Any idea of how much was there? A. That was the list your man promised to furnish me. Q. Did you see any of the gasoline? A. It was in tanks. Q. Did you find out anything about the quantities? A. No, sir. page 34 ~ Q. Before you went there, you were directed to levy on these things ? A. Yes, sir. Q. Can you tell ine where you got your authority of law to · levy on property of a co-defendant-to go there and take posses sion of ·this property? By Mr. Branaman: To which counsel for the First National Bank of Waynesboro objects for the reason that this witness has already testified that possession was still with Mrs. Johnson and with the brother of Rodney Johnson and furthermore than the Standard Oil Company's men made no objections and laid no claim to this property and, in addition thereto, this witness is called upon to express an opinion of law. By Mr. Perry: To which counsel for the Standard Oil Company of New Jersey replies that this witness has not testified that the goods there at that time were in the possession of Mrs. Johnson, but has distinctly testified that two or three days before that he saw them in possession of some one else and it has been stipulated that at the time Rodney Johnson had departed for parts unknown. Mr. Perry: Q. Where did you get your authority? A. I made my levy I don't know the law on that sub- ject. First National Bank of Waynesboro v. R.H. Johnson et als. 39
Wm. F. Coyner, Jr.
page 35 ~ Q. Didn't Mr. Branaman instruct you to make that levy when you went down th(;!re? A. He asked me to make the levy. Your man told me he would furnish me with a copy of the list but he did not. Q. Didn't Mr. Branaman instruct you to make the levy? A. To make a levy. Q. Did he go with you? A. Did he tell you to go indoors; and levy on this property ? A. Yes, sir, and I did go in.
Witness leaves the stand.
Mr. Edmunds, representing petitioning creditors "vVaynesboro Small Loan Corporation and McClung Brothers.
Please wait a moment Mr. Coyner, I would like to ask you a few qu~stions :
Q. Did two attachments come into your hands, one in favor of the Waynesboro Small Loan Corporation and one for F. W. McClung and B. F. McClung, trading in business as McClung Brothers, against R. H. Johnson ? A. Yes, sir. Q. Did you make levies on property of R. H. Johnson in favor of these two attachments? A. Yes, sir. Q. Do you recall when and where you made the levies on prop erty of R. H. Johnson pursuant io these two attachments? A. That was made on two machines, cash registers-one of them was. Q. That was in favor of who? A. McClung Brothers. page 36 ~ Q. What property did you levy on in favor of the Waynesboro Small Loan Corporation? A. Household goods, along with the other at the same time. Q. At the time you made the levy for McClung Brothers, will you please state where the cash registers were? A. One in the Esso station and one up at Mrs. Johnson's home. Q. Who was in charge of them? A. I will have to look at the date on the levy.
'...._ 40 Supreme Court of Appeals of Virginia
Wm. !F. Coyner, Jr.
Q. Do you recall when you made the levies pursuant to these two attachments that I am asking you about? A. I don't recall without seeing the papers. Q. Do you know whether the proceedings under these two attachments went to judgment in the Trial Justice Court of Augusta County? A. Yes, sir. Q. Do you at the present time have an execution in your hands on the two judgments in these two cases? A. Yes, sir. Q. I hand ;you an attachment against R. H. Johnson in favor of F. W. and B. F. McClung, trading in business .as l\kClung Brothers and will ask you to look at it and tell the Commissioner when it was served and on whom? A. Served on Mrs. Mary S. Johnson on July 11th. Q. Where was Mrs. Johnson at the time it was served? A. She was at the station. I levied on one register at the sta tion and she got in the car with me and went to her home and I levied on the other one. page 37 t Q. Who was in charge of the station? A. Mrs. Johnson and Mr. Johnson's brother. Q. Do you mean to say that at the time you made that levy Mrs. Johnson, the wife of R. H. Johnson, and the brother of R. H. Johnson were in charge of the station? . A. They were at the station. This levy came into my hands at the time stated here, July 11th at 2 :OS p. m. Q. Was any one else in the station at the time you made the levy of that attachment? A. I do not recall. Q. Was there any one there in working clothes in charge of the station other than R. H. Johnson's brother? A. I would not say. It is hard to remember. Q. I hand you another attachment dated July 12, 1941, ~ued out by the Waynesboro Small Loan Corporation against R. H. Johnson and wife and will ask you to please state when you made a levy pursuant to that attachment? A. The morning of July 12th at about 9 :15 a. m. Q. Did the proceeding in that go to judgment in the Trial J us tice Court? A. Yes, sir. First National Bank of Waynesboro v. R. H. Johnson et als. 41
Wm.. F. Coyner, Jr.
Q. Do you have an execution now in your ahnds in favor of that judgemtn? · A. Yes, sir. Q. At the time you were at the Esso Service Station on the Jefferson Highway in Waynesboro making the levies pursuant to the two attachments that I have been asking you about page 38 ~and also the attachment of the First National Bank of Waynesboro, who , 11.ras the operator of this station? A. When I was in the station, they were all in front and I did not see any business transacted. Q. You know what I mean by "operator" ? A. Yes, sir. Q. Was any one there other than one Johnson m operator's clothes? A. I would not like to say. Q. Was A. R. Harding there at the time you made the levy? A. He was there the first evening I was there on July 11th. Q. Did he have on service station clothes? A. No, sir. Q. Was there any one there that had on service station clothes looking after the -station? A. I could not answer that. Q. Did it appear to you that any one else had charge of the station than Mrs. Mary C. Johnson and R. H. Johnson's brother? Mr. Perry: Objected to. A. I would not say so. . Q. Did any one claim to you that they had charge of the sta tion other than Mrs. Johnson and R. H. Johnson's brother? · A. No, sir, not that I know of.
RE-CROSS EXAMINATION
By Mr. Perry: Q. You· testified about the process of July 11th, re page -39 ~turnable July 27th. You made two visits to the station on that day? A. No, sir. Q. You have already stated that you made one visit to the station with the First National Bank attachment about four-thirty. A. Yes, sir. 42 Supreme Court of Appeals of Virginia
Wm. F. Coyner, Jr.
Q. You testified that you "were at the place at two-thiry? A. No, sir. Q. What you want to say is that that paper came into your hands at that tim~? A. Yes, sir. Q. You went to the service station-did you have these other
A. I had them at the same time-I had the papers at the same time as the attachment was made for the Bank-Mr. Edmunds asked me to meet him at three o'clock. Q. You left Staunton after receiving this paper· at 2 :05? A. Yes, sir. Q. You only paid one visit that evening? A. Yes, sir, but went back the next morning. Q. How does it come that in regard to the First National Bank process you have testified that Harding and Hawkins and Hewlett of the Standard Oil Company were there, and now you say that no one was there except Johnson's brother. A. They were all there when I went back. Q. All of them were there? A. Yes, sir, but the next morning I went back and went up to the house with Mrs. Johnson. page 40 ~ Q. Let us confine this to the first paper of the 11th which was served at four-thirty p. m. at the same time the other was. A. Yes, sir. Q. At that time, who was in the filling station? A. The same ones I mentioned a while ago, Mr. Hawkins, Mr. Hewlett, Mrs. Johnson, A. R. Harding and Simmons. Q. Was Johnson's brother there at that time? A. Yes, sir. Q. He was there? A. Yes, sir. I had no paper for him. Q. Where did you find the cash registers levied upon on the ~allowing morning · in the possession of Mrs. Mary C. Johnson, one National Cash Register No. 3881404 and one National Cash Register No. 3959172? A. One was in the station and one was in the residence of R. H. Johnson. Q. Which was in Mrs. Johnson's residence? First National Bank of Waynesboro v. R.H. Johnson et als. 43
Wm.. F. Coyner, Jr., and S. H.flall
A. I could not say but I think the first number was the one in the station and other in the residence. Q. And instead of Mrs. Johnson being in possession of them you found Messrs. Hewlett, Hawkins, Harding and another John- • son in the station? A. I found them all there, yes, sir. Q. You took no property of any sort into your possession? A. No, sir.
Witness leaves the stand.
page 41 ~ S. H. Hall, a witness on behalf of the plaintiffs, being first duly sworn :
DIRECT EXAMINATION
By Mr. Branaman: Q. What is your business, Mr. Hall? A. Wholesale food distributor. Q. What trade name do you use? A. Biue Ridge Grocery Company. Q. Did you do any business ~ith R. H. Johnson who was conducting the Johnson Esso Filling Station? · A. He had an account with us. Q. Do you have that account with you? A. Yes, sir. Q. Will you file that in evidenc~ marked "Exhibit Blue Ridge Grocery Company Account." A. Yes, sir. Q. What is the balance due on ~hat account? A. $105.22. Q. What was the original invoice? A. $146.11. Q. What credits do you have on the account? A. Cash payment made June 28th, $21.36 and returned mer chandise $19.43, consisting of candy, packages of aspirin, ciga rettes, etc. Q. was that returned to you? page 42 ~ A. I was absent at that particular time. My man who looks after that business while I was away, he heard 44 Supreme Court of App~als of Virginia
S. H. ,Hall and Mrs. Mary C. Johnson
Johnson w~s leaving town and I think he went over to the station and Mrs. Johnson gave him permission to take this because it was of a spoilable nature-it would not keep.· I would not have taken it back if I had been there. Q. Mrs. Johnson gave your agent permission to take back these items that appear in the account? ' A. Yes, sir, we did not go over and snatch them. Q. Did you give credit on the account? A. Yes, sir.
CROSS EXAMINATION
By. Mr. Perry: Q. Is that when that return was made? A. July 9th.
Witness leaves the stand:
Mrs. Mary C. Johnson, being duly sworn :
DIRECT EXAMINATION
By Mr. Branaman: Q. Your name is Mrs. Mary C. Johnson? A. Yes, sir. Q. The wife of R. H. Johnson? A. Yes, sir. Q. Do you know his present whereabouts? A. I do not. page 43 ~ Q. Did he leave Waynesboro? A. As far as I know he did. I have not heard of him since July 7th. Q. You saw him last on July 7th, 1941? A. Yes, sir. · Q. What was his business? A. He was operating the Standard Esso Station. Q. Was that at Commerce Avenue at the underpass? A. Yes, sir. Q. What was the name of that station? A. R. H. Johnson Esso Station. First National Bank of Waynesboro v. R.H. Johnson et als. 45
Mrs. Mary C. Jolinson
Q. Were there signs on it to that effect? A. Yes, sir, there was. Q. I believe that sign was purchased from the Standard Oil Company? A. One sign there that my husband purchased from the Stand ard Oil Company. Q. Is this check that I hand you in payment of a sign that was purchased from the Standard Oil Company of New Jersey? A. It was the down payment. Q. Dated April 2, 1941? A. May 2, 1941. Q. What is the account that it is drawn on? A. R. H. Johnson Esso Station. Q. Is that your husband's signature? A. Yes, sir. Q. Payable to Standard Oil Company? page 44 r A. Yes, sir. Q. It is for $25.00? A. Yes, str. A. After your husband gave up the business, did you have it in your possession for some days ? A. I was down there every day after my husband left. Q. Did you participate in the operation of the station? A. I took in some accounts that were due. Q. Sold gasoline? A. I did not sell it myself; my brother-in-law sold some. Q. Is your brother-in-law here? A. Yes, sir.. Q. What is his name? A. Merlin Johnson. Q. He was assisting your husband in operating the station, working for him, was he not? A. Yes, sir. Q. When did the station open after the underpass was com pleted? Do you recall? A. My husband was down there before the underpass was completed. I don't know the date. Q. Did he suspend operations during the construction of the underpass? A. Yes, sir. 46 Supreme Court of Appeals of Virginia
Mrs. Mary C. Johnson
Q. Did he start operating some time in the spring of 1941 after the underpass was completed ? A. Yes, sir. page 45 ~Q. Do you recall Mr. Coyner, the Deputy Sheriff, com- ing to the station on the afternoon of July 11, 1941? A. Yes, sir. Q. Was Mr. Hewlett or Mr. Hawkins at the station then? A. Yes, sir. • Q. What were they doing there? A. We had been taking an inventory of the stotjc in the station. Q. With a view to selling it to some one? Mr. Perry: Objection. Q. What was the reason for taking this inventory? A. They had a bad check of some $643.00 and some cents and I knew that it was due the Standard Oil Company and I was helping them take the inventory-I thought they would get some of the stock. I did not know what it was for. Q. Did you, while these gentlemen were taking this inventory, sell any gasoline? A. I did not myself. Q. Did your brother-in-law? A. Yes, sir. Q. He continued the sales of gasoline? A. Yes, sir. Q. After the inventory had been completed-or had this in ventory been completed when Mr. Coyner came into the station? A. I don't think it had. Q. Did he serve any paper on you at that time? A. Yes, sir. page 46 ~ Q. Did he give one to Mr. Hawkins and Mr. Hew- lett? A. Yes, sir. Q. And also to Mr. Simmons? A. Yes, sir. Q. Mr. Hall has testified that perhaps you suggested that some pr.rishable groceries, candies, etc., might be taken back and credited on the account? A. Yes, sir. I told him to come and take them back. Q. Di~ you also permit McClung Brothers to take some items that they had sold and delivered to your husband? First National Bank of Waynesboro v. R.H. Johnson et als. 47
Mrs. M OJYY C. Johnson
A. Yes, sir. Q. What about Mr. Simmons? Did he take away his equip- . ment that he had there? A. Yes, sir, he did. Q. What was it? A. I don't know what it was. It was some kind of grease equipment. Q. Was it a grease gun? A. I don't know what you call it. I would know it if I would see it but I don't know the name of it.
DIRECT EXAMINATION
By Mr. Taylor: Q. Mrs. Johnson, did you receive a copy of the inventory of the goods that were left in the station when you husband left from any one? A. Yes, sir, the Standard Oil Company gave me a copy of that inventory they took. page 47 ~ Q. Do you remember the date that that copy of in ventory was given to you? A. I think it was the next day. Q. I hand you a paper and ask you if that is the inventory that was given you and, if so, by whom? A. This is the first one they took. Q. That is not the one they gave you? A. No, sir. Q. When did you receive the copy of the inventory that they took? A. They gave me that-I don't know whether it was on the 12th or not. 12th or 13th. Q. Did you receive another inventory prior to receiving this one? A. You mean from the Standard Oil Company? Q. Yes, ma'am. , A. I don't believe they did give me a copy. I remember them taking it down and writing it out in pencil but I don't believe they gave me a copy of that. Q. I hand you a paper and ask you whether or not you have ever seen it before? 48 Supreme Court of Appeals of Virginia
Mrs. M (lll"y C. J oknson
A. Yes, sir. Q. It is marked "Accounts Receivable" of R. H. Johnson, is that correct? A. These are articles still in the station? Q. The property of whom? A. I guess they are mine. page 48 ~ Q. Where did you get that list of property? A. From my husband's station. Q. Did you make out that list? A. I made that list myself with the help of Mr. Hawkins. Q. Representative of the Standard Oil Company of New Jersey. A. Yes, sir. Q. I notice it was made out on the stationery of the Standard Oil Company of New Jersey but the list was actually made out by you? A. Yes, sir. Q. When did you make that list? A. I don't recall the exact date. Q. Could you refresh your memory-would you say it was made the day that Mr. Hewlett and Mr. Hawkins and Mr. Sim mons were there when Mr. Coyner came in-was it made before or after that time? A. It must have been made after that because we took the in ventory of the other stuff. Q. This was a subsequent inventory that is on the printed sheet? A. Yes, sir. I took it after they took that inventory. Q. Can you tell, Mrs. Johnson, the last day that you partici pated in the activities of that station-running the station or the functions going on there. You say you don't remember the date the paper was written-when did you discontinue going to the station or looking after the station? page 49 ~ A. After Mr. Harding took it over on July 12th. Q. I understood you to say that you were at the station continuously from the date your husband left until Mr·. Harding took it over? A. Yes, sir, I was. · Q. Mr. Harding took it over-took over the operation and management of the station on July 12th? A. Yes, sir. First National Bank of Waynesboro v. R.H. Johnson et als. 49
Mrs. Mary C. Johnson
Q. After that date, did you go there any more or bother with it at all? A. No, sir. Q. Mrs. Johnson, at the time you made up this inventory that has been exhibited here, the items are written down and the pri_ces or values carried out in dollars and cents-when did you get the value of these articles. Did you know them or where did you get the values to put do~n on the sheet? A. I got part of them from Mr. Hawkins and a part of them from my brother-in-law. Q. At the time you left the station in charge of Mr. A. R. Harding, these articles were still in the station? A. Yes, sir. Mr. Perry: Objected to on the ground that the question is mis leading---- Mr. Taylor: I think she testified that she did not go back to the station after the turning over of it to Mr. A. R. Harding on July. 12th and that she looked after it before that. page 50 ~ Q. Was there any signs listed in any of the inven tories as belonging to your husband, R. H. Johnson electrical or neon or 'Esso'-any kind of signs listed in the inven tory? A. No, sir, I don't think there is. Q. Did your husband or not own a sign there at that station? A. We had made a down payment on one. Q. That property was bought from whom? A. Standard Oil Company. Q. Did the Standard Oil Company or any representatives of the Standard Oil Company purchase from you or pay you any money for any merchandise that they took out of the station on the 11th day of July? A. No, sir, they did not. Q. Did you receive any money from the Standard Oil Com pany? A. No, sir, not from the Standard Oil Company. Q. Did you receive any money from any one for merchandise taken on July 11th? A. No, sir. Q. I hand you a piece of paper and will ask you to explain to the Commissioner just what that account represents? so Supreme Court of Appeals of Virginia
Mrs. M wry C. Johnson
A. This is for equipment-it is for things at the station that were not bought from the Standar~ Oil Company. Q. Did you sell them to some one? A. I accepted a check. Q. From whom? A. A. R. Harding. page 51 ~ Q. That check was for merchandise that belonged to R. H. Johnson prior to his leaving? A. Yes, sir. Q. It was for merchandise that had not come from the Stand ard Oil Company of New Jersey? A. Yes, sir. Q. When did you sell and receive payment for that merchan dise? A. July 11th. Q. It was turned over to Mr. A. R. Harding by you on that date? A. Yes, sir. Q. Who was dispensing gasoline and oil and running the sta- tion on that date? ' A. My brother-in-law. By Mr. Edmunds: Q. Did I understand you to say that McClung Brothers took certain articles from the station with your consent the same as that you gave Mr. Hall? A. Yes; sir. Q. Did they give you a list of what they took or did you make up a list? A. They made out a list. Q. And gave you a copy of it? page 52 ~ A. Yes, :;ir. By Mr. Franklin: Q. Mrs. Johnson, this contract of the Augusta Furniture Com- ' pany. Was this levied by Mr. Coyner? A. Yes, sir. Q. This contract for $358.05 was signed by whom? A. By me. Q. Mr. Coyner levied on this other contract? A. Yes, sir. Q. Who is that signed by? First National Bank of Waynesboro v. R.H. Johnson et als. 51
Mrs. Mary C. Johnson
A. . R. H. Johnson. Q. This is his signature? A. Yes, sir. By Mr. Edmunds: Q. Mrs. Johnson, is this a copy of the list of material that F. W. McClung took with your permission? A. Yes, sir. Q. What date was that taken? A. . It is dated July- 10, 1941. By Mr. Taylor: That last paper I filed, I will ask the Commis sioner to allow the stenographer to make a copy into the record in order that I may have it back. It is the only copy I have.
page 53 ~ (NOTE: Said paper identified as "Exhibit No. 3, Mrs. R. H. Johnson is as follows :
Form 1-25-BP 2.409 STANDARD OIL COMPANY OF NEW JERSEY LOCATION------ DATE 193-----
SUBJECT------
REF.------4--35c Films ...... 21 .84 6-25c Films ...... 15 .90 6-Underhood lights ...... L77 10.62 3 used batteries ...... 75 2.25 139-lOc spring flx...... 8.34
$22.95 Received payment by check for above amount July 1, 1941 (s) Mrs. Mary Johnson.
,page 54 ~ By Mr. Branaman: Q. What does the account amount to-the McClung account? A. It is not totaled. Q. Is there any rental due Wm. F. · Landes at the residence 52 Supreme Court of Appeals of Virginia
.Mrs. Mary C. Johnson occupied by you and your husband at the time he left? A. Yes, sir. Q. Do you recall the amount ? A. $125.00. Q. Is that amount correct? A. As far as I know it is? Q. Never been paid? A. No, sir.
CROSS EXAMINATION
By Mr. Perry: Q. How long were you married? A. I would soon have been married four years. Q. You have two children? A. One child. Q.Did you take any active part or any part whatever in running the service station your husband had? A. I had kept his accounts and books in the office? Q. For some time before your husband left, you had not done anything at the office you had not been around. A. I was there until about three or four weeks before he left. 1page 55 ~ Q. During that three or four weeks interval between time you speak of and the time your husband le£ t, you did not go back down there ? · A. Went back? Q.Did you take any part in the work there? A. I don't know whether I helped him or not. Q. Did you do any bookkeeping? A. No, sir. Q. Did -- why did you put in that period of three or four week$-.:what change took place? A. He had another girl with him. Q. He left town on the night of Monday, July 7th? A. Yes, sir. Q. You did not know anything of his going? A. No, sir. Q. When did you first find out that the filling station was not being run by your. husband? What happened the next morning? First N atiorial Bank of \Vaynesboro v. R. H. Johnson et als. 53
1vl rs. Mary C. Johnson
A. Mr. Hewlett and Mr. Hawkins were up to the house on the night my husband left. Q. You at that time knew that your husband had gone? A. Yes, sir. Q. The next morning-state whether or not you went to the service station after talking with Mr. Hawkins and Mr. HewJett the night before? A. Yes, sir. page 56 ~Q. You went down there on Tuesday morning? A. I think I did. I think I was down there every day. Q. On Tuesday morning -- what 1s your brother-in-law's name who stayed at the station? A. Merlin Johnson. Q. He had been there with your husband for some time? A. Yes, sir. Q. He was the one who filled the tanks and attended to the servicing of automobiles at the station for your husband? A. Yes, sir. Q. When you went down on Tuesday morning, do you recall whether you stayed all day or were you just there alone at any time? A. Mr. Hawkins and Mr. Hewlett were there. Q. On Tuesday, I am speaking of. A. (Witness does not answer). Q. One or the other was always there? A. Yes, sir. Q. Your brother-in-law was dealing out oil and gasoline to people that came in for service? A. Yes, sir. Q. Mr. Hewlett and Mr. Hawkins are both with the Standard Oil Company of New Jersey, are they not? A. Yes, sir. Q. Do you recall when this taking of the inventory was be gun-was it on Tuesday the 8th or Wednesday the 9th or on Thursday, the 10th? Do you recall? page 57 ~ A. I think they started in taking the inventory the next morning after my husband left. Q. Mr. Hawkins was actively taking the inventory? A. Yes, sir. Q. Mr. Hewlett, was he doing any of the extensions or any- 54 Supreme Court of Appeals of Virginia
Mrs. Mary C. Johnson thing of that sort-was he taking part in it? A. · He was there off and on. · Q. You, of course, did not stay at the filling station on the 8th and 9th until the station closed. You went home to your child? A. My mother-in-law was keeping the child. I don't think I was at the station in the evening. Q. You were there possibly in the mornings? A. And afternoon. Q. And during the time before the 11th, what progress was made in taking of the inventory that Mr. Hewlett and Mr. Haw kins were busy on-was it caried on all the time--were these gentlemen on it all the time you went there? ~ow long did it take them to complete it? A. Three or four days. Q. A rather considerable job? A. Yes, sir. Q. You have a list there of the articles that McClung Broth ers took-that list was made by McClung Brothers. Was the ma terial or items given to McClung Brothers before Mr. Coyner the deputy sheriff came down or do you recall what day they were taken? A. I don't recall. page 58 ~ Q. These goods that McClung Brothers took and the goods the Blue Ridge Grocery Company took-they were in a separate building on the premises-your husband had a separate building in which he kept his merchandise? A. Separate where he kept cigars, cigarettes. Q. And those goods that McClung Brothers and the Blue Ridge Grocery took were in that building. A. Not the goods that McClung Brothers took. They are whole sale automobile parts. They were in the station. Q. Those goods that the Blue Ridge Grocery Company got were in the little building to one side in which merchandise of that kind was kept? · · A. Yes, sir. Q. Mr. Simmons got some of that personal property. Do you recall what date that was? A. No, sir. Q. Do you recall any one else that got any goods or property from there except the Blue Ridge Grocery Company, McClung First National Bank of Waynesboro v. R.H. Johnson et als. 55
Mrs. Mary C. Johnson
Brothers, Simmons and Standard Oil Company. A. Coca Cola Bottling Works got the drinks. Q. Who got the refrigerator? A. Waynesboro Creamery. Q. All of those things were taken out before Mr. Coyner got there? A. I don't remember. , Q.How long had your husband been in the service station busi ness?. page 59 ~ A. Ever since I knew him. Q. How long is that? A. Five years. Q. His father was also in the service station business? A. Yes, sir. Q. When Mr. Coyner came into the station, do you recall who was present beside yourself ? · A. Mr. Hawkins, Mr. Hewlett, Mr. Simmons and Mr. Hard ing. Q. This was the 11th and he came there about four-thirty in the afternoon? A. Yes, sir. Q. Had you been there all day up to that time? A. Yes sir. I might have gone home for lunch. Q. What time in the morning did you start in there? A. Around nine o'clock. Q. What time did Mr. Harding come there on the day that Mr. Coyner came in-he came in the afternoon and he said he f~und Mr. Harding there. What time did he come there? A. He was there that afternoon. Q. Was he there in the morning as well? A. I don't recalf. Q. You knew at the time that Mr. Harding had purchased the station when Mr. Coyner came in? · A. N~, sir.· : : . . Q. Wh~n di4 _you ~~s.t l~~rn. that Mr. Harding had purchased it? ·.. ; . A. When I saw him writing the check to Standard Oil Com pany? page 60 ~ Q. W~s th,a~--~~f ~re ~r. Coyner came? A. I don'·t kriow-·· Mr. Harding wrote a check to me 56 Supreme Court of Appeals of Virginia
Mrs. Mary C. Johnson
--- I think it was after the levy was made. Q. That check was for the items on this list that you have tes tified about-that is the $22.46 check? A. $22.95. Q. You say you think he gave that after the levy. Did you see him give a check to the Standard Oil Company of New Jersey on that day? A. Yes, sir. Q. What time did he do that? A. He wrote that before he wrote my check. Q. Diel you see that check delivered? A. Yes, sir. Q. Can you tell me what time it was delivered? A. Not the exact time. . Q. You knew then that Mr. Harding had bought the articles in the station. A. I thought when he gave them the check that he was buying the stock. · Q. He was there from that time on until the Deputy Sheriff came as well as you remember? A. You mean Mr. Harding? Q. Yes, ma'am. A. I think he was. Q. Did Mr. Harding employ your brother-in-law? A. I don't know. You will have to- ask him about that. page 61 ~ Q. You don't know how long he continued? A. I think it was about a day. Q: You spoke of the list that Mr. Hawkins gave you-a type written list which seems to be a carbon copy and you speak of that as an inventory. You say Mr. Hawkins took the inventory per sonally and that was given you afterwards? A. Yes, sir. Q. Do you know anything about the bargain between your husband and the Standard Oil Company of New Jersey concerning that neon sign on which the $25.00 payment appears to be made? A. I remember hearing my husband talking about" it. Q. Was it a rented sign? A. I don't know. Q. You don't know what the contract was? First National Bank of Waynesboro v. R.H. Johnson et als. 57
Mrs. Mary C. Johnson
A. No, sir.
RE-DIRECT EXAMINATION
By Mr. Taylor: Q. Mrs. Johnson, you, I believe, were served with a paper by the Deputy Sheriff at the same time that Mr. Hewlett, Mr. Haw kins and Mr. Harding were served-did Mr. Coyner give you a paper at the time that he delivered papers to the other people in the station? A. Yes, sir. Q. That was copy of an attachment? A. Yes, sir.. Q. Do you have a'ny property now in your possession other than the furniture that belonged to your husband, Rodney John son? A. No, sir. page 62 ~ Q. You did have these lists turned over to you by Standard Oil Company and by McClung Brothers and A. R. Harding-things they got out of the station? A. Yes, sir. Q. You have no other property other than the furniture m your possession that belonged to R. H. Johnson? · A. No, sir. Q. That money that you received from Mr. Harding, what did vou do with that? A·. I appliea it on the note at the First National Bank. By Mr. Franklin: Q. In the answer of the Augusta Furniture Company, they set up the contract balance due on the first one "Exhibit No. 1- Mrs. R. H. Johnson" as $50.00. Is that correct? A. I don't know. Q. In the other· one they set up the balance due as being $128.00. Is that correct?
At this point it becoming late, the further taking of this evi dence is adjourned until Friday, November 14, 1941, at the same place, at ten o'clock A. M. page 63 } Friday, November 14, 1941; ten o'clock, a. m. 58 Supreme Court of Appeals of Virginia
Mrs. Mary C. Johnson aoo W. J. Hewlett
The further taking of evidence is reswned pursuant to adjourn ment on November 10, 1941. Present: The Master Commissioner; Messrs. Branaman, Ed munds, Perry and Taylor, Attorneys.
W. J. Hewlett, a witness on behalf of the Standard Oil Com pany of New Jersey, being first duly sworn:
DIRECT EXAMINATION
By Mr. Perry: Q. What are your initials? A.· W. J. Hewlett. Q. You live in Staunton? A. Yes, sir. Q. You are employed by the Standard Oil Company of New Jersey? A. Yes, sir. Q. In what capacity? A. District Sales Manager at that time. I am now the Regional Sales Manager. Q. As Sales Manager or Regional Manager, state whether or not you had in the month of July, 1941, any supervision over or anything to do with the service station belonging to the Standard Oil Company of New Jeresy, at the corner of Commerce Avenue and the Rockfish Road in Waynesboro? A. Yes, sir. Q. What were your duties in connection with it? A. I was responsible for its operation and sales. page 64 ~ Q. It has been testified here that R. H. Johnson was· operating that station, certainly for several months be fore July 1, 1941. Is that correct? A. That station was put in operation approximately the first of May. I don't recall the eaxct date. Q. Bywhom? A. Standard Oil Company of New Jersey with R. H. Johnson as the manager. Q. He was in charge of the station or operating the station under a lease from the Standard Oil Company of New Jersey? A. Yes, sir. First National Bank of Waynesboro v. R.H. Johnson et als. 59
W. J. Hewlett
Q. It appears that R. H. Johnson left these parts about July 7, 1941. State whether or not you visited the Johnson Service Station or had anything to do with it or had any conversation or talked with him on Monday, July 7, 1941? A. ~ es, sir, I was in the station. Q. By yourself? A. With Mr. Hawkins and it was approximately four-:thirty in the afternoon on Monday, July 7th. Q. Who is Mr. Hawkins and what is his position? A. General Salesman for Standard Oil Company. Q. State what was the object of your visit there and what oc curred there between you and Mr. Hawkins on the on~ side and Mr. Johnson on the other?· A. We had discovered -- we had made an investigation and discovered that certain phases of the operation of the business concerning the operation of the station-that we felt that certain corrections should be made in the management of the page 65 ~station and we went in to look after business and told him that we wanted the business run on the basis that we desired. Q. At that time, state whether or not Johnson had given the Standard Oil Company a check for gasoline, and if so, what the check was? . A. He gave us a check on Saturday, I think it was on a Satur day, the 5th and we sent a load of gasoline from Richmond. Q. How much was that check for, using any memorandum that you might have? A. It was in excess of $600.00. I don't know the exact amount and I don't think I have the exact amount-here it is $643.94 and protest fees. Q. Had the check at that time been protested ? A. No, sir. Q. Had it been cashed? A. That was given to the driver of the truck that delivered the gas and was sent to Richmond and deposited there-it was not deposited until Monday, the 7th. Q. It had not come back to the Waynesboro bank on which it was drawn? A. So far as I know, it had not. 60 Supreme Court of Appeals of Virginia
W. J. Hi!'Wlett
Q. Did you have a talk with Johnson about his ability to pay that check? A. Yes, sir. Q. State what occurred. A. I was there on Monday and saw he had quite an amount of cash on hand and I asked him why he had not deposited it in the bank on Monday and he said he had been busy and page 66 ~had not been able to get to the bank and I asked him if the check would be good that he had given us on Sat urday. He said it would. Q. He had quite an amount of cash on hand. Did you ascer tain how much? A. No, sir. Q. What else happened further in regard to that Johnson sta tion that same day? A. I was at home in Staunton about eight o'clock and Mr. Hawkins called me on the telephone and said that something had happened in Waynesboro and asked me to go over there with him and I went by and picked him up in the car and we went to Way nesboro and got over there about eighty-thirty. I don't recall the exact time. Q. Did you go to the station? A. Yes, sir. Q. Was it open? A. Yes, sir. Q. vVas Johnson there? A. Not R. H. His brother was there. Q. The brother is the one called Merlin? A. Yes, sir. Q. What did you learn from him? A. He said his brother had been in and told him goodbye. Q. Did you go to the station? A. I don't think he told me that definitely that he had. He said his brother came in and told him good-bye. page 67 ~ Q. What action, if any, did you take that night? A. We went up to Mrs. Johnson's home-the wife of R. H. Johnson and she said he had left a few minutes before we got down there. Q. Did she tell you where he had gone? A. She did not know. First National Bank of Waynesboro v. R.H. Johnson et als. 61
W. J. Hewlett
Q. Said that he had left town. A. She said she didn't know where he was. He had gone and she did not know where he was. Q. Was anything further done by you or Mr. Hawkins to your knowledge that night in regard to that station? A. We rode around Waynesboro and thought we might see him and we went to some places where we thought he might be. Mrs. Johnson was with us and we left Waynesboro, I would say it was about twelve o'clock or possibly twelve-thirty. Q. Had you found him? A. No, sir. Q. Did you return to this service station the next day-on the eighth? I A. I was there during the day. Mr. Hawkins was there about seven o'clock in the morning. I sent him over the first thing in the morning, but I did not get over there until some time later. Q. What were his instructions with regard to the station? A. Instructions were to take a complete inventory of all prod ucts purchased from us, and to operate the station. page 68 ~ Q. Were the products ·purchased from your company in the station at that time? A. Yes, sir. ' Q. State whether or not any other gasoline other than the gas- oline made by your company was at that station? A. No, sir. Q. It was exclusively an Esso station? A. Yes, sir. Q. These products or goods in the inventory-what did they consist of? A. You mean purchased from us? Q. Yes, sir. A. Gasoline, motor oils, greases, tires, tubes, batteries, acces sories. Q. They were all a part of the products that you in your busi ness regard as products made by your company and sold to the trade? A. Yes, sir. Q. Did Johnson ever return? A. As far as I know, he did not. Q. State whether or not you or any one for you took charge 62 Supreme Court of Appeals of Virginia
.W. I. Hewlett of that station on the morning of July 8th? A. Mr. Hawkins took charge of it. Q. Was the operation of that service station continued or did you close the premises up? A. We closed the station at approximately twelve o'clock noon on the 8th. page 69 r Q. Up to that time you had operated it? A. Between. seven and. twelve o'clock, yes, sir. Q. What employees did the actual operating of that station, that is, sell gas and oil. What employees did you have there, or who did you have there? A. I was not there. Mr. Hawkins was there in charge of the station. Q. When you went down there on the morning of the 8th, was there any service men such as you spoke of? A. Yes, sir. Q. Who was there? A. R. H. Johnson's brother. Q. Merlin Johnson? A. Yes, sir, ~nd one or two other men. Q.; The station was closed at twelve o'clock on the 8th. State whether or not you took possession as against your tenant and, if so, when? A. We took possession at approximately seven o'clock on the morning of the 8th, according to the terms of his agreement. Q. State whether or not you took possession of the products in there? · A. Yes, sir; just as soon as the inventory was taken, we placed them into our stock. Q. You closed the station on the 8th at twelve o'clock? A. Yes, sir. · Q. At that time did you stop selling gasoline and oil to cus tomers? page 70 r A. Yes, sir. Q. When was the station re-opened if at all? A. Re-opened on the 11th. Q. Between the 8th and the 11th, did I understand you to way that the station was not operated at all-no gasoline or oil sold? A. That is right. Between twelve o'clock noon on the 8th until we opened it on the 11th. First National Bank of Waynesboro v. R.H. Johnson et als. 63
w .. J. Hewlett
Q. Did -- how long did you stay there after the station was closed on the 8th? A. I was in and out of there every day. Q. On the 8th? · · A. I was there until some time late in· the afternoon. I don't recall the exact time. Q. Were you personally in charge of the inventory or was Mr. Hawkins? A. Mr. Hawkins took the actual inventory. Q. Who else except you and Mr. Hawkins were in the station when you were there on the morning of the 8th? A. Before closing? Q. Yes, sir. A. Mrs. Johnson was there. When· I got down there, they had stopped selling gasoline. It was closed then. When I arrived Mrs. Johnson was there and Johnson's brother was there. I don't know the others. Q. Did you take any active part in taking the inventory or was that Mr. Hawkins' work? page 71 ~ A. Mr. Hawkins'. Q. State what happened, if anything, in regard to that station on the 9th, i £ you were there ? Was anything done about it? A. I was at the station on the 9th. My principal duties in Waynesboro between the 8th and the 11th were interviewing a number of prospective dealers that wanted the station. Mr. Haw kins was at the station practically all of the time. I was in and out. Q. Were there people in Waynesboro-service station . people who wanted to lease the premises and operate it? A. Yes, sir, that is what I was doing. Q. How many such applicants did you have? A. I don't know exactly-I would say twenty-five. Q. Then what was happening on the 9th-was that the same on. the 10th? A. Yes, sir. Q. It appears that Mr. Harding became your tenant. Did he first get in touch with you or you with him? A. He called me first on the telephone. Q. Do you know when that was? 64 Supreme Court of Ap{Jeals of Virginia
W. J. Hewlett
A. I don't know exactly the date he called me. Q. Go ahead. A. He called me at my home and while I was in Waynesboro he drove by the station and came in and we talked about it in the station. · . : . : .. ~ .. : Q. Do you recall what day that was, whether it was the 10th or the 11th? A. 9th, I think. page 72 ~ Q. In the meantime, was the inventory still being taken? A. We took the first inventory on the morning of the 7th. Mr. Hawkins took it and we placed the products in our stock and we sold until about twelve o'clock and then we stopped. Q. You actually sold from that stock on hands during the morning of the 7th? A. Yes, sir. Q. How much was taken in that morning? A. As far as sales were concerned-credit sales tickets $16.92 and $84.54 in cash. Q. Making a total of about $90.00? A. Approximately ·$100.00. Q. What was done with the money? A. It was sent into the Richmond office. Q. To the credit of Johnson? A. Yes, sir. Q. State whether or not at that time Johnson was indebted to the Standard Oil Company of New Jersey? A. Yes, sir, we had made a delivery of gasoline in June on what we call a charge basis and it was being liquidated on future deliveries. Q. How much was that amount? A. The same as this other one, $643.94. Q. On the 8th, had anything happened with that check that he had given you? A. We· found on the 8th through our office in Richmond that the check was "No Good." page 7 3 · ~ Q. That check of $643.94 was not for the gasoline that had been delivered on June 7th? A. No, sir. First National Bank of Waynesboro v. R.H. Johnson et als. 65
w .. J. Hewlett
Q. For what gasoline was that check supposed to pay-the one ·that was protested? A. The one protested was given us on July 5th. Q. For what gasoline was that in payment? A. For the delivery made on July 5th. Q. That was a cash transaction? A. Yes, sir. Q. And those two items of $643.94, one of June 19th and the gasoline delivered on July 5th. Those were not the same items? A. The amounts were the same but not the same deliveries. Q. One was not pay for the other one, so that for two-those two items alone, Johnson owed the Standard Oil Company of New Jersey something over $1200.00? A. Yes, sir. Q. In addition to that I here hand you an account which is the same as the account attached to the answer of the Standard Oil Company of New Jersey in this case and will ask you whether or not that is the account with Johnson, between Johnson and the Standard Oil Company and does that represent all of the trans actions that occurred up to the time of and inclµding the sale to Mr. Harding that I will ask you about presently? A. Yes, sir. page 74 ~ Q. I understood you to say that you were first in touch with Mr. Harding on the 8th and the next time on the 9th when he drove by the station at Waynesboro-was it the 9th? A. Yes, sir. Q. Then you entered into negotiations with Mr. Harding at. that time-do you know what time they took place? A. I went up to Mr. Harding's coal yard and his son was there and both of us drove over to Mr. Harding's home-I am speaking about the elder Mr. Harding and we went over the matter in de tail telling him just what we would expect in case we decided to turn the station over to him-what we would expect in the way of sales and the transaction of business. At that time I had quite a number of people that were interested in the station and I said that before I would make any commitment, I wanted to talk with some of the others. Q. That was on the 9th? A. Yes, sir. 66 Supreme Court of Appeals of Virginia
W. J. Hewlett
Q. Go ahead. A. On the 10th, I was -- after I had talkec:l to the other· people that were interested, I went back to see Mr. Harding and told him that I had decided that if he would agree to take the sta tion on our terms that I would give him a lease. Q. When, if ever, did he accept? A. In the afternoon of the 10th. Q. State whether or not he executed a lease with Standard· Oil Company of New Jersey for those premises? page 75 ~ A. We verbally agreed on the 10th-on the terms of our lease and on the morning of the 11th it was signed. Q; What time in the morning of the 11th-let me ask you this, was it before noon or after? A. Before noon. Q. Where was it signed? A. At the station. I was not present when it was signed. Q. Was Mr. Harding there? A. Yes, sir. Q. Do you know when the lease was delivered-was it deliver ed before you came? A. Mr. Hawkins had the forms and Mr. Harding had signed the forms and they were in Mr. Hawkins' possession. . Q. Who signed for the Standard Oil Company of N e.w Jersey? A. It had not been signed because all leases are signed by our management in Richmond. I think Mr. Hawkins witnessed Mr. Harding's signature. Q. The lease at that time was in Mr. Hawkins' possession? A. Yes, sir. Q. State whether or not you made any sales of any Standard Oil Company's products either such as were in the station to Mr. Harding and, if so, at what price? A. On the 11th after the inventory was taken by Mr. Hawkins we sold to Mr. Harding merchandise that was purchased from us based on inventory values. page 76 ~ Q. You spoke of the first inventory and the second inventory. In inventorying or listing this stuff, of course, you measured the gasoline in the tanks? A. Yes, sir. Q. The gasoline was in tanks on the premises? A. Yes, sir. First National Bank of ·waynesboro v. R.H. Johnson et als. 67
W. J. Hewlett
Q. Were the articles that were in the station listed separately? A. Yes, sir. Q. State whether or not they included any fixtures such as cash reigsters or typewriters or anything like that-did. inventory include any furniture or fixtures. A. The inventory that we took only .included products pur chased from us. , There were some other things but we told Mrs. Johnson that we would not be responsible. for those things not purchased from us. Q. What became of them? A. Some of them were taken by the people who sold the mer.: chandise to Johnson and some of them were taken to Mrs. John son's res~dence. Q. By her or by you? A. She hired a truck. We were only interested. in getting them away from the station. Q. What prices were extended against each item? A. Wholesale prices--what Johnson paid for them-the market pnce. page 77 ~ Q. After examining those prices, state whether . or not any steps were taken by you to insert-to see that the proper extensions had been made. A. We verified the prices. It was taken on a .gallonage basis and the value was verified-prices according to our current price lists. Q. Current list at Staunton? A. Yes, sir. Q. Was any material change m the inventory value by that subsequent examination? A. There was less merchandise on the second one because we had sold some of it. Q. For the amount you sold, as you have already stated, the money was taken and Johnson given credit for the ·cash? A. Yes, sir. Q. The approximately $90.00? A. Yes, sir, we sent it in to our Richmond office to ·be credited to Johnson's account. Q. Did you give Mr. Harding a copy ·of the inventory of what you sold him? A. We gave him an invoice for what he bought. 68 Supreme Court of Appeals of Virginia
W. J. Hewlett
Q. Do you have a copy of that invoice? A. Yes, sir, I think I have. There were some slight variations -some extensions were calculated· wrong. Q. This is a carbon copy of the invoice that you gave to Mr. Harding? A. Yes, sir. page 78 ~ Q. When did you give him this invoice? A. After he bought the accessories. Q. State whether that was before noon or after noon on the 11th? A. It was a little later than noon that we gave him the invoice. Q. Was it before or after Mr. Coyner, the Deputy Sheriff came into the service station? A. That he was given the invoice? Q. Yes, sir. A. Not until after the Deputy Sheriff had been there? Q. State whether or not Mr. Harding paid you for the Stand ard Oil Company for this merchandise, and, if so, when? A. Mr. Harding paid me about three or three-thirty on the 11th. Q. How much did he pay you? A. The amount of those invoices. We made a rough calcula- tion and he paid me. Q. The total amount of the invoices was $1196.16? A. Yes, sir. Q. When did he give you that check? A. About three-thirty in the afternoon. Q. Before or after Mr. Coyner came there? A. Before. Q. Where was that check when Mr. Coyner came there? A. In my pocket. page 79 ~ Q. Who was in possession of those premises as tenant when Mr. Covner came there? A. Mr. A. R. Hardi~g was operating the premises-the station and had been operating it since approximately noon on the 11th. Q. Who was in possession of those articles of personal property covered by these invoices? A. Mr. A. R. Harding. Q. Had the Standard Oil Company of New Jersey at that time First National Bank of Waynesboro v. R. H. Johnson et als. 69
W. J. Hewlett anything to do with those products-was it exercising· any pos session or control over them? A. We had sold them to Mr. Harding. Q. And he had taken possession? A. Yes, sir. Q. And all the articles shown on this invoice are the sa:rne products or articles that were in the station at the time your inven tory was taken excepting such as had been sold in the interval be tween eight and eleven? A. Yes, sir, that was merchandise purchased from us. Mr. Perry: I wish to file these invoices. The Witness: There was a slight error in the calculations and they were verified in Richmond. Some items that we arrived at one price was finally fixed at another. Q. That is a true list of all that stuff except what was sold and accounted for? A. Yes, sir. page 80 ~ Q. You spoke something about being more than one copy. · I only want one copy to file? A. It is in duplicate. Some of these invoices are in different colors and that has no bearing on the case. This is the invoice we made out on invoice forms that we had there rather than destroy them. The color has nothing to do with it. Q. You spoke of giving the invoices to Mr. Harding. Were they given to him-by you or Mr. Hawkins, do you recall? A. Mr. Hawkins. Q. He can testify as to that matter and as to the time they were delivered? A. Yes, sir. Mr. Perry: I desire to file these invoices in evidence as· "Stand ard Oil Company Exhibit No. 1-W. J. Hewlett." Q. Looking at these invoices, the answer of the Stadnard Oil Company of New Jersey says that at the time they took possession of the premises, they took possession of a large quantity of gaso line, to-wit 2864 gallons at the market value of $518.09 in the tanks under the leased premises. Is that correct? A. Yes, sir. Q. It also says that it took possession of a quantity of motor oils and lubricants of the market value of, to-wit $224.62 in re ceptacles on said premises? 70 Supreme Court of Appeals of Virginia
W. J. Hewlett
A. Yes, sir. Q. And that on said premises· there were certain automobile accessories, automobile tires and the like, of the then aggregate market value of $463.43? Is ·that correct? A. Yes, sir. page 81 ~ Q. Did those articles have an established market value? A. Yes, sir. Q. What was done in your accounts or the Company's accounts with those articles that you took into possession? A. They were taken into our· inventory. Q. As a part of your stock? A. The original inventory was taken ·on the morning of the 7th and was placed in our general inventory along with other similar items. Q. What was the total amount that Johnson owed your Com pany at the time ? A. All of the items-everything? I don't know that I can tell you-- Q; Look at the account? A. After all charges and credits it was $1106.85. Q. Before any credits were made, how much. was it? A. $1353.93. Q. There was a credit against that aggregating what? A. $247.08. Q. There was credited against that indebtedness what you got ·from Mr. Harding? A. As far as the credit is concerned --- Q. I want to find out what was the state of the account after the transaction occurred. How much did Johnson owe you? A. When we took the inventory we placed it at once in our stock and credited that amount to Johnson's account. page 82 Q. How much did you credit to his account in all? A. The total value of the inventory. Q. Put that into figures, using this account. A. We credited him $101.48 that we had sold. Q. That was his money? A. Yes, sir, and we also credited to his account the value of the inventory. Q. How much was that? First National Bank of Waynesboro v. R.H. Johnson et als. 71
W. J. He--&lett
A. This is the amount that we sold --- Q. Will you tell me what the amount of the account against Johnson was? A. The amount of his account after all credits amounts to $1106.85. . Q. And you sold to A. R. Harding how much? A. $1196.16. Q. The answer states that you credited against the indebtedness of Johnson $1206.14. Is the answer correct? A. The answer is correct. As we stated, there were some slight adjustments. Q. So .the amount actually credited to Johnson was· the sum of $1206.14? A. Yes, sir-there was a slight error. Q. It is stated in the answer that Johnson'~ credit was more than Johnson owed. How much was the balance owed by the Standard Oil Company of New Jersey to Johnson? A. $99.29. page 83 ~ Q. Do you or Mr. Hawkins know anything about a sign that has been testified to concerning which Mrs. Johnson testified the other day -- is that a matter within ·your knowledge? A. We are both familiar with it. Q. Tell us about that. A. That was a neon sign with the word· "Esso" on it. That sign is never sold; it is only rented. Q. Johnson then never purchased that ,gign? : · A. He made a down payment on it. Q. A check was ·introduced in evidence here of Johnson's for $25.00 which was paid. What was that for? A.. That was the· down payment to cover the cost of transpor tation and erection. That sign was never sold; it was only just rented. Q. Was that placed on Johnson's premises with or without a contract? A. With a contract. Q. I hand you here a contract dated May 2, 1941, between the Standard Oil Company of New Jersey and R. H. Johnson, signed by the Standard Oil Company of New Jersey as Lessor, by F. H. Skehan, ·and ·R. H. Johnson as Lessee, ·and will ask you if that 72 Supreme Court of Appeals of Virginia
W. J. Hewlett is the contract under which the sign was placed on R. H. Johnson's premises? A. Yes, sir. I was with Mr. Hawkins when that agreement was signed. Mr. Perry: I wish to file this as Exhibit "Standard Oil Com pany No. 2-Hewlett." page 84 ~ By Mr. Perry: Q. You took possession of that sign when you took possession of the premises? A. The sign was never erected-it had not been put up at that time. Q. Still in its case or package? A. Yes, sir. Q. Is that the reason why you havt! given no credit to Johnson for the $25.00 on the sign? A. $25.00 is included in the statement. Q. You credited him with $25.00? A. Yes, sir. Q. You have not given him credit for the sign for the reason that he did not own it? A. No, sir.
CROSS EXAMINATION
By Mr. Taylor: . Q. Please point out the· credit that was given for this sign? A. Here it is, $25.00. Q. There is a credit dated May 15, 1941, of $25.00 and you say that is the reimbursement for the sign-the amount paid for the sign by Johnson ? A. I am under that impression. I don't know definitely but I think that is. At any rate that is the true status of the ac count. page 85 ~ Q. 'Ne are trying to get this $25.00 matter straigh tened out. A. I think the original agreement was --- Q. You cannot then say definitely whether the credit as of May 15, 1941 of $25.00 has any connection with the sign or not? A. I could not say definitely, but I am under that impression. It takes some time for the records to clear the Richmond office. First National Bank of \Vaynesboro v. R.H. Johnson et als. 73
W. J. Hewlett
Q. As a matter of fact, the sign was not purchased until May 2nd? Mr. Perry: Objection on the ground that there has been no evi dence of purchase. By Mr. Taylor: · Q. This is the check introduced and read into the record, what is the writing on the check? A. For down payment on Esso sign. Q. What is the date of that check? A. May 2nd. Q. The amount of the check? A. $25.00. Q. Who is the payee? A. Standard Oil Company of New Jersey. Q. Your answer shows no record of what the $25.00 credit is for on May 15th? · A. Only as a credit. Q. Johnson did not leave the station until July 7th. Is that correct? A. Yes, sir. page 86 ~ Q. You would not be giving him credit for a sign that he agreed to take under a contract or purchased or anything on May 15th for something that had never been delivered? A. The sign had been delivered but had not been erected. Q. Do you know the wording on the sign? A. A neon "Esso" sign. Q. Is that all? A. Yes, sir. Q. R. H. Johnson's name was not on it? A. No, sir. Q. And that you say was the property of the Standard Oil Company of New Jersey? A. Yes, sir. ··Q. Would that sign, had Johnson continued to operate this station, ever become the property of Johnson? A. No, sir. Q. Your company did accept a check that states on it "Down payment on Esso sign"? A. Yes, sir, that was to cover the freight and installation charges had it been erected~ 74 .Supreme Court .of .Appeals .of Virginia
W. J. Hewlett
Q. Did you lease this station to R. H. Johnson as an agent of the Standard Oil Company of New Jersey? A. We leased it to him. Q. Do you have a copy of the lease? A. I don't have it with me. Mr. Perry has it. Mr. Taylor: I would like to call for the lease that covers that station. page 87 ~ I have no copy of it. I have a copy of the form but have not a copy of the lease. I will have to procure a copy of that. It is suggested that there is no controversy over the fact that there was a lease. By Mr. Taylor: Q. Mr. Hewlett, as I understand it, Johnson was operating un- der a written lease from the Standard Oil Company of New Jersey? A. Yes, sir. Mr. Perry: I will have a verified copy of the lease forwarded. By Mr. Taylor: Q. Were you present at the. time the lease was executed? A Mr. Hawkins actually witnessed Johnson's signature to the lease. Q. Lease on the premises ? A. Yes, sir. I discussed the matter with R. H. Johnson as to the terms of the lease and the agreement was formally written up by the Richmond office and sent up here to be negotiated. · Q. Can you tell me this? How long did R H. Johnson oper ate that station? A. You mean the new station or the old one? Q. How long was this particular station in operation---'-the ·new station? A. Since just before the first of May. I don't recall ·the date buf·we had the formal opening ·the same day ,that the underpass was opened but he had been open a few days before that. Q. That is the station located at the intersection of the J effer son Highway and Commerce Avenue, in \i\Taynesboro? page 8 ~ A. Yes, sir. Q. That is the station in question? A. Yes, sir. Q. I hand you a purported copy of a lease and will ask if that is the one covering this property ? A. This is the old lease. This was not in effect at that time. First NationalBank of Waynesboro v. R.H. Johnson et als. 75,
W. J. Hewlett
That was cancelled when the station was torn down. Q. Was there· a new agreement entered into? A. When the new station was built, yes, sir. By Mr. Taylor: When I came here prepared to inquire into this, all I had was copy of a lease with the same man by Standard· Oil Company of New Jersey, dated October 23, 1939· and covers the same premises so far as I knew, which lease carried a hold~over period and I was under the impression that that was the lease in question. If that is not the lease now in force I don't know what to do until the lease is produced. The Witness : That is the old lease. By Mr. Perry: The certified copy of the lease will be produced. Q. At the· time you took possession of those premises, state whether or- not Johnson was in default in payment of rental? A. There was rental due on the fir~t day of July. It had been paid, through June and on the· 7th of July, it was seven days past due. By the Commissioner: If you gentlemen don't mind, Mr. Frank lin is· anxious to file two papers at this time. Mr. Franklin : I want to file the note showing the amount that was due, the Johnson note under contract filed as Ex.;. page 89 ~hibit No. 4, note at the First National Bank showing the balan·ce of the Augusta Furniture Company account due· July 2, 1941. This is on the household goods and I have an affidavit here showing the $128.00 which was· admitted to be cor rect and affidavit showing the $50.00~ By Mr. Taylor: Q. As I understood, you testified in chief that you went to this station on the morning of July 8th and took possession. Is that correct? · A. I was there about that time--Mr. Hawkins was there about seven o'clock-I was there at noon or about noon, to take possession. Q. The Standard Oil Company of New Jersey, as I under- stood your testimony, took over on the morning of July 8th ? A. Yes, sir, that is right. Q. Under what authority did you take it over? A. Under the terms of our lease. Q. Under the terms we had with Johnson. Q. Do you have a copy of that lease present-did you have a 76 Supreme Court of Appeals of Vi~ginia
W. J. Hewlett and R. W. Hawkins copy then? A. I don't have it now but I knew the terms of the lease. Q. What were the terms of that lease? Mr. Perry: Objection as the terms of the lease itself constitutes the best evidence. The Commissioner : Inasmuch as the lease is going to be in troduced in evidence, any examination of Mr. Hewlett regard ing the terms of the lease would, in my opinion, be futile. page 90 ~ I would suggest that your cross examination on the lease be def erred until the lease is secured. By Mr. Taylor: That is all right, but Mr. Perry had put into the record now that on July 7th there was a past due rental ac count the only clause -- that would be the only clause that would be in the lease that would give them a right to re-enter. I don't have that lease and have been trying to find something that would -- he did something on his own idea of what was in the lease -- I want to know how he knew that the rental was past due at the time he took over this station? The Commissioner : You can go ahead and examine the witness all day long but I don't think it will do any good. It would be futile to go into the question of the lease when the lease itself will be introduced later. Mr. Taylor: He said he went there under the authority of this lease and I asked him the terms of that authority in the lease. My question was-was there any rental due to his knowledge at the time he took over the station? The Witness: Yes, sir.
The further cross examination of this witness is postponed until the lease is produced. page 91 ~ R. W. Hawkins, a witness on behalf of the Standard Oil Company of New Jersey, was duly sworn :
DIRECT EXAMINATION
By Mr. Perry: Q. What is your name, please? A. R. W. Hawkins. Q. Where do you live? First National Bank of Waynesboro v. R.H. Johnson et als. 77
R. W. Hawkins
A. Staunton, Virginia. Q. You are employed by the Standard Oil Company of New Jersey, I believe ? A. Yes, sir. Q. What is your position or what was yo~r position in July with that company? A. General Salesman. Q. How long had you had that position? A. Nine years. Q. In the course of that employment or did that employment make it your duty to have anything to do with the R. H. Johnson Filling Station in Waynesboro? A. Yes, sir. Q. State whether or not you were in the R. H. Johnson Filling Station in Waynesboro on July 7, 1941? A. I was. Q. Who was with you? A. Mr. Hewlett. Q. What was the object of your visit? page 92 ~ A. We made a regular can. I was calling on all dealers in Waynesboro.. Mr. Hewlett was with me and we stopped in to see Johnson to take an order, which I took, for merchandise for deliery in the next few days. Q. Was it deliered? · A. No, sir. Q. State whether or not anything occurred later that day, in the afternoon or evening, with respect to Johnson or the Filling Station in Waynesboro? A. That night, it was, right close to eight o'clock. I don't know the exact time but Mr. Johnson's brother came to my home--. Q. Is that Merlin Johnson? A. No, sir, another brother. He came to my home and said that his brother was getting ready to leave town. Q. Rodney Johnson ? A. Yes, sir, and he thought I should know that information and I thanked him and then called Mr. Hewlett and told him of this information that I had and asked if he would go with me to Waynesboro. We got there about eight-thirty. Q. Was that the night of July 7th? A. Yes, sir. We found only Merlin Johnson there in the sta- 78 Supreme Court 0£ Appeals 0£ Virginia.
R. W. H (llU)kins
tion and we asked where Ro~ney was and Merlin said that he had been in there a short time before and told him good-bye he did not know anything of his whereabouts and I. told. him to continue to operate the station and then Mr. Hewlet and page 93 ~myself ~ent down to Mr. Johnson's residence and asked Mrs. Johnson if she knew where he was and she saicl she did not; that he had left the house a short time before we got there but she did'nt know where he was. We drove around Way nesboro for several hours looking for him and were in and out of the gasoline station. Q. Did you find out whether or not he actually had left town? A. We never did find him. Q. Was any inquiry made by you of the police that night? A. No, sir. Mrs. Johnson called the Sheriff's office that night. Q. While you were there? A. She had already called. Q. Did she give you that information? A. Yes, sir. Q. What did you do the next morning? A. We -- I went back the next morning at approximately seven o'clock and took over the station and took an inventory of the merchandise there. Q. Was it open when you got there? A. Yes, sir, Merlin Johnson had already gotten there~ Q. Did you have any arrangement with him by which he would continue to work there? A. I told him we would pay him. Q. The Standard Oil Company would pay him? A. Yes, sir. page 94 ~ Q. When did you give. him that information? A. During that day. Q. You went down there with the intention of taking over the station? Did you take it over? A. Yes, sir. I put on overalls and went to work and took an inventory first-first thing we did. was to take an inventory, read the meters on the pump gauges, and took an actual physical in ventory of all items in the station? Q. Did you take that in pencil? A. Yes, sir. First National Bank of Waynesboro v. R.H. Johnson et als. 79
R. W. Hawkins
Q. At that time you did not extend the prices-or, did you extend the prices? A. No, sir. Q. How long did it take you to make that inventory? A. In the neighborhood of an hour or an hour and a half to cover every item and do the extensions. Q. When was that first inventory completed? A. The extensions were completed that afternoon. Q. That is the prices. A. Yes, sir. Q. When was the list completed? A. I did that that morning. Q. The morning of the 8th? A. Yes, sir. Q. What did you do that morning in connection with operating the service station, if anything? page 95 ~ A. I waited on cars, put in gasoline, checked the oil, wiped windshields and did everything that a gasoline filling station man would do. Merlin Johnson was helping me. Q. ·what was done with the money? . A. I kept the money. At the time we put it in the cash register that Rodney Johnson had there as a matter of record. We put it in there. Q. What did you do with the money later? A. At the end of the day, I counted the cash in the presence of Mrs. Johnson and took the money to Staunton, and made a receipt for it and, I think, I gave Mrs. Johnson a copy of it. I deposited the money in the bank with our ca·sh which went into the bank-into the account of Standard OH Company. Q. State whether or not you operated this filling station during Tuesday? A. Until approximately noon or a little after. I do not recall the exact time but I was advised by the Company to close the station. Q. Did you get that information from Richmond or from Staunton? · . A. Mr. Hewlett conveyed that information to me by telephone that he had just received. Q. From Richmond? A. Yes, sir. 80 Supreme Court of Appeals of Virginia
R. W. Hawkins
Q. Did you close the station ? A. Yes, sir. I discontinued the sale of gasoline and pulled the door down on the grease groom, cut off the current and. sold no merchandise. page 96 ~ Q. Was the station closed the next day? A. Yes, sir. Q. When was it opened again? A. The morning of the 11th. Q. During the whole of the 10th, the station was closed, were you present ? A. Yes, sir. Q. What were you doing there at that time? A. The 9th we closed the station up; Mrs. Johnson was present in the station a good part of the day of the 9th and 10th. She was there collecting accounts from any one that came there to pay on past accounts to R. H. Johnson. Q. What did she do with that money? A. She did not give it to me. Q. The money that you received and deposited has nothing to do with the money she collected on accounts? A. No, sir, only what was sold by us. Q. She was there the 10th? A. Yes, sir. Q. The station was closed? A. Yes, sir, I ·had the keys. I took the keys on the 8th and kept them until the 11th until we turned them over to Mr. A. R. Harding. Q. Did you turn them over to Mr. Harding on the 11th? A. Yes, sir. Q. \,Vhat time of the day? page 97 ~ A. I don't recall ·what time it was but it was in the morning. Q. Before or after the Deputy Sheriff came there?· A. In the morning-before. Q. It is in evidence here that there was a contract of rental signed between Mr. A. R. Harding and the Standard Oil Com pany of New Jersey on Company forms. ·when was that con tract executed ? A. Approximately ten o'clock. I arrived· at the station be tween nine-thirty and ten and the elder Mr. Harding had not First National Bank of Waynesboro v. R.H. Johnson et als. 81
R. W. Hawkins
arrived but his son was there and we talked about the lease. He signed the lease as well as his father. Q. The two of them signed the lease? A. Yes, sir. Q. You say it was approximately ten o'clock? A. Yes, sir. Q. Had you done any selling in this filling station at that time? A. No, sir, not since we closed it up on the 8th. As soori as they signed the lease, we started selling-as soon as we took the in ventory, we started selling. Q. That is, on the morning of the 11th ? A. Yes, sir. Q. Who was in charge of the st~tion then? A. Cecil Harding was in charge and Merlin Johnson was work ing for him. page 98 ~ Q. You were not down there in charge? A. No, sir. Q. Did you deliver the goods that were in that inventory to 'Mr. Harding at the time the lease was signed? A. As soon as he signed the lease, we started in to take the inventory. He had agreed to buy the merchandise there-that was 'the agreement and we got busy and as fast as we inventoried the items he went to selling them. Q. He had agreed to buy them from whom? A. The Standard Oil Company of New Jersey. Q. Do you know what Mr. Harding paid the Standard Oil Company of New Jersey? A. It was according to the inventory. I was present when he wrote the check because I gave him the extensions. Q. You had the sum total of the goods? A. Yes, sir, and Mr. Harding went over it with me. Q. At that time, had the Deputy Sheriff arrived? A. No, sir.
CROSS EXAMINATION
By Mr. Branaman: Q. Where is that list you made on July 8th? A. The inventory? Q. Yes, sir. 82 Supreme Court of Appeals of Virginia
R. W. Hawkins
A.· I have it. Q. Will you file it or file copy of it? A. Yes, sir. · Q. What is the value of the property you listed on the 8th of Ju~? . page 99 ~ A. That would be hard to say-the invoices plus the cash that was credited to his account-that was the way we arrived at it. I think some things had qeen eliminated. My original included some items which we did not sell to R. H. Johnson which I eliminated from this inventory. However the original total carried some items sold by McClung Brothers. Q. Read the question ( Question was re-read to witness) A. I have here listed a total of $1107.12. Q. Did you list every item of Rodney Johnson's property on the morning of the 8th, including the gasoline in tanks, etc.? A. No, sir. Q. What did you list? A. All the merchandise, greases, tires, oil and automobiles ac , :: ~ :•:iw:, cessories. . ...:~4.&Y Q. Did you leave anything unlisted? A. Yes, sir. Q. What? A. Some equipment there that we had not sold him; desks, cash registers and various articles. Q. If you were making a complete inventory of Rodney John son's property on the filling station premises, why did you not list all of the property? A. I was only interested in the merchandise that we had sold Johnson. Q. Did you list the automobile parts and accessories sold by McClung Brothers? page 100 ~ A. Yes, sir. I listed some through error. We sell the identical same things but we did not sell these. I did not know this until McClung Brothers came there-one thing was a radiator hose. Q. When did he come there? A. Either the 9th or 10th, I don't remember which. Q. Why did he come there? A. To take some merchandise to apply on the account. Q. Was that Johnson's merchandise? First National Bank of Waynesboro v. R.H. Johnson et als. 83.
R. W. Hawkins
A. It ·had been. Q. Was it Johnson's merchandise? · A. I don't know. He was not present. We had taken this station over; Johnson was not present. Q. You sold Rodney Johnson all of the items listed on the in- ventory which you say you took? A. Yes, sir. Q. You opened a book account and charged every item to him? A. No, sir. Q. Did you keep a book account of the items that you sold to Rodney Johnson? A. We sold a majority of the items for cash. Q. If you had sold so rnuch for cash, why is it that you have a bill of· between $1100.00 and $1200.00? A. When Johnson opened up, he was buying gasoline in large quantities and he did not have sufficient capital to stock the service station and he needed this stock, and as we wanted to sell the merchandise, we agreed to let him have it on what we page 101 ~tall a "Pay Back" basis. We delivered a load of gas oline that amounted to some $640.00 on which he signed an agreement that he would pay that back over a period of time at the rate of so much .per gallon. Q. That agreement was never recorded at any time? A. No, sir. Q. You delivered him the gasoline on the premises that he had leased from the Standard Oil Company of New Jersey and you had charged him with that load of gasoline? · Q. Is it not correct that every item that you sold to Rodney Johnson that he did not pay for on the spot, that you charged it to him on the books? A. Not every item. Q. How could you keep track of such items that you did not charge him with? A. We keep tires, batteries and accessories and things like that in one group and some accounts we give credit on motor oil and grease and some on gasoline-that is this "Pay Back' basis. Q. Don't you make a memorandum in your office.of such items sold and delivered to Rodney Johnson? A._ We rendered an invoice along with the items. Q. You kept those invoices and send copies to Richmond ? 84 Supreme Court of Appeals of Virginia.
R. W. Hawkins
A. Yes, sir. Q. You do keep a book account? A. A majority of them are cash invoices. Q. You don't always get the cash? A. Then _it is a charge sale. page 102 ~ Q. What is not paid for in cash, the Company's books show it as being sold and delivered to him and that. he owed you for it? A. Yes, sir. Q .. He had the absolute right to sell the gasoline or any of the tires to any customers that came in there ? A. Yes, sir. Q. It was his property? A. It was our property. He was leasing it-the merchandise, yes, sir. Q. He was the Lessee of the filling station and the filling sta tion site? A. Yes, sir. Q. How large is that station-what is the lerigth ih front on Rockfish Road? A. I could not tell you. Q. Isn't it about 38 feet? A. It is about 130 feet. Q. The building? A. Approximately 45 feet. Q. To the east end there is a wash stand? A. Yes, sir. Q. And adjacent to that is a grease stand? A. Yes, sir. Q. Doesn't that occupy about half of it? A. Yes, sir. . Q. .Then you have a little office about eight by ten feet? A. Yes, sir. page 103 ~ Q. That is where you keep the merchandise? A. Yes, sir. Q. Where is the toilet? A. Back of the office. Q. That occupies about eight by ten feet? A. I think about six by eight feet. A. .Behind. the office. First National Bank of Waynesboro v. R.H. Johnson et als. 85
R. W. Hawkins
Q. Is that in a separate building? A. No, sir. Q. All of this is about forty by twenty feet? A. Yes, sir. Q. · Does the station extend out over the pumps? A. No, sir. . • Q. You have four pumps there in the open? A. Yes, sir. Q. I think I saw you the first time on the morning of July 11, 1941, about ten-thirty at The First National Bank? A. I was there-I don't think it was ten-thirty though. I think fr was later. Mr. Harding and I ate lunch together. Q. What were you doing there? A.. He asked me to go there to the bank with him as he was borrowing some money to pay for the merchandise. Q. Did he borrow the money? A. Yes, sir. Q. He took that money and bought Rodney Johnson's mer chandise? A. No, sir. page 104 ~ Q. Whose merchandise was it? A. The Standard Oil Company's. Q. How did you get it except to grab it? A. He bought the merchandise from me representing the Stand- ard Oil Company. Q. You mean you were selling Rodney Johnson's merchandise? A. That we had taken into inventory. Q.Didn't you know that you were selling Rodney Johnson's mer chandise? A. As far as I was concerned, I was selling the Standard Oil Company's merchandise. Q. Didn't you know that you were selling Rodney Johnson's merchandise. Q. Didn't you know that you were selling merchandise that the Standard Oil Company of New Jersey had sold and delivered and placed in possession of. Rodney Johnson? · A. And we had taken it back and sold it to Mr. Harding. Q. What right did you 4ave to take that merchandise and sell it to A. R. Harding and Cecil Harding? Mr. Perry: Object to that as a matter of law which the witness 86. Supreme Court of Appeals of Virginia
R. W. Hawkins cannot answer. A. The reason we took the merchandise was due to the fact that Johnson owed us money and I knew that that check was com ing through and I did not think it would be good. page 105 ~ Q. What gave you the intimation that the check would not be good? . A. On the afternoon of the 7th when I was talking to h~m, I asked him if the check would be good and he showed me in the neighborhood of $700.00, and I asked him why he had not put it in the bank and he said he had intended to but that he was so busy that he did'nt have time to get to the bank but that he would put it in the bank the next morning; so when he could not be found that night or the morning of the 8th, I cliclin't think he had put the money in the bank and, in that case, the check would not be good. Q. You knew that the bird had flown? A. I had reasons to think so. Q. You telephoned Richmond and wanted to get out a war- rant for Johnson on the check ? A. I did not. Q. Who did? A. I presume that Mr. Hewlett can answer that questiqn. Q. They advised against it? A. Yes, sir. Q. You do state, however, that some of the Standard Oil Com pany's agents did telephone Richmond with reference to getting a warrant out for Rodney Johnson and they told you not to do so? Mr. Perry: Object-it is a privileged communication and he can not tell about that. The Commis~ioner: Answer the question. page 106 ~ A. Yes, sir. Q. If you had other items of property on the Stand ard Oil Company's premises that was not sold by you to Rodney Johnson, why didn't you take into your custody and control and sell it to Mr.. Harding? A. I was advised to have it moved from the station. Q. Is some of it still on the premises now? A. No, sir. Q. What is the value of that property ? A. I don't know. Q. Didn't you make a list of it? First National Bank of Waynesboro v. R.H. Johnson et als. 87
R. W. Hawkins
A. No, sir. Q. Why? A. Mrs. Johnson made a list of the property. I helped her to approximate the values. Q. What was it? A. I don't know. I don't think it was ever entered into the record -- I think Mrs. Johnson did enter it on record. Q. Did Simmons have any property on the premises at the time you went there on July 7th or 8th? A. Yes, sir. Q. What was it? _A. Lubricating gun. Q. Was it on the leased premises that Johnson was operating as a filling station? A. Yes, sir. page 107 ~ Q. Where is it now? A. At present it is at the station. It was removed from the station and brought back. Q. Who removed it? A. Mrs. Johnson had it removed.· Q. By whom? A. Some truck. 'Q. Where? A. To her home. Q. When did it come back? A. The 11th. Q. Who brought it back? A: Simmons. Q. Who owned it then? A. A. R. Harding. Q. Who did he buy it from? A. Simmons. Q. When did McClung Brothers re-possess their items of mer chandise that they had sold and delivered? A. Either the 9th or 10th. It was in the afternoon of one of the two days. Q. Do you remember discussing this sale with me in the Bank? A. I don't remember a whole lot about it. You were on your way out. 88 Supreme Court of Appeals of Virginia
R. W. Hawkins
Q. Don't you know that you talked to me down there--? page 108 ~ A. I don't recall. Q. Don't you know that we v,.ralked away from Mr. Vance and you said that you wanted to open the station there and Mr. Harding was going to purchase Johnson's interest and take it over? A. I don't recall. I don't recall a lot about the conversation. Q. Don't you know that you told me that_ you were anxious to get this station opened and operated by a permanent lessee and get it open and going? A. I may have told you that I had leased the station to Mr. Harding and that he was borrowing the money to pay for the merchandise. Q. Don't you know that yo~ never said anything at all about leasing to Mr. Harding-don't you knmv that you said the deal would depend upon securing the money? A. Mr. Harding had signed the lease that morning and it was in his possession. Q. Why did you tell me that the transaction depended upon the loan of the bank? A. I don't recall. Q. Mr. Harding had to get the loan in order to buy the John son stuff? A. No, sir. Q. Don't you recall that I left you and walked over where Mr. Harding was? A. Yes, sir. page 109 ~ Q. He was negotiating the loan? A. Yes, sir. Q. Why didn't you tell ·me when we were talking there that this property was Standard Oil Company's property and that you had taken it over from Johnson? A. I don't know that I had any reason to tell you. Q. You knew that you were selling Johnson's property, didn't you? A. No, sir, I was selling Standard Oil Company's merchandise at that time. Q. Were you -- you were selling the same identical mer chandise that you ha~ sold and delivered to Johnson? First National Bank of Waynesboro v. R.H. Johnson et ais. 89
R. W. Hawkins
A. Yes, sir. Q. You were selling no other merchandise that that which you had sold and delivered to Johnson? A. That is right. Q. You say that Mrs. Johnson was present much of the time on the 8th, 9th, 10th and 11th? A. Yes, sir. Q. She was there when Mr. Coyner the Deputy Sheriff came and served papers on Mr. Harding? A. Yes, sir. Q. Simmons? A. Yes, sir. Q. Mrs. Johnson? A. Yes, sir. Handed you one? page l 10~ A. No, sir. Q. Gave your buddy one? A. Mr. Hewlett. Q. Who else was there? A. Merlin Johnson, Cecil Harding and another boy that Cecil had employed. I don't know what his name was-Morris, I think. Q. You went with Mr. Coyner through the station? A. Yes, sir. Q. Took him out and showed him the storage room-six by eight feet? A. Yes, sir. Q. He told you he was making a levy? A. Yes, sir. Q. You did not claim it as Standard Oil Company's property? A. Never claimed anything. Q. You kept quiet like you did when you talked to me down in the bank? A. Yes, sir. Q. You wanted us to make the loan but did not want to say that the Standard Oil Company of New Jersey had re-possessed it or laid claim· to the property? · A. I had no reason to tell his business to outsiders and did not say anything. Q. You kept ,yo~tr. mouth shut? page 111 ~ A. Sometimes it is the best policy. 90 Supreme Court of Appeals of Virginia
R. W. Hawkins and Mrs. Mary C. Johnson
Q. Don't you recall in the bank when I asked you when I told you that this man owed about $700.00 to the First National Bank and asked you whether there would be sufficient property on hand to pay the bank's debt and also to satisfy you-- A. I d~n't recall that quest.ion.
RE-DIRECT EXAMINATION
By Mr. Perry: Q. State whether or not you made any such assertion to M'r. Branaman? A. I don't recall doing so. Mr. Branaman: I will make a statement at the proper time.
\\'itness leaves the stand.
Mrs. Mary C. Johnson, called again in her own behalf :
DIRECT EXAMINATION
By Mr. Taylor: Q. When you were testifying the other day, you stated that McClung Brothers had taken some property from the station to which you agreed. Did any one else come there and take property? A. Yes, sir. Q. Who else took property during the 8th, 9th, or 10th of July? page 112 ~ A. Blue Ridge ·Grocery. Q. They gave you a complete list of the items they took? A. Yes, sir. Q. They gave credit for it on Mr. Johnson's account? A. Yes, sir. Q. Did any one else get any property? A. Simmons Parts Company. Q. Who turned over the property to them that they took? Did you turn it over to them? A. I gave them authority to take it away. Q. What date was that if you recall? First National Bank of Waynesboro v. R.H. Johnson et als. 91
Mrs. Mary C. Johnson
A. I don't recall the date. It n1ust have been around the 10th or 11th. Q. It is in evidence here that Simmons was present at the sta tion at the time Mr. Coyner was there. Was that the day that they moved it away? A. He did not get it from the station. He got it from my home. Standard Oil Company had told me that I had to get it out of the station and I took it to my home-had it sent up there on a truck. Q. And Simmons got it from your house? A. Yes, sir. Q. Do you know the value of the property that he secured at yClur home? .\. Around $400.00.. Q. Has he paid you or has any one paid you for page 113 ~that property? A. No, sir. Q. Or paid R. H. Johnson, to your knowledge? A. No, sir.. Q. That property was in the station at the time the Standard Oil Company took it over? · A. You mean after my husband left? Q. Was there any papers served on you or your husband for possession of this thing or was it delivered to Simmons -- A. There was no paper served on me. Q. Other than the papers down there at the station that day? A. No, sir. Q. You say there was approximately $400.00 worth of stuff in the station that had come from Simmons Parts Company and which was at the station at the time the Standard Oil Company men came there the day after your husband left? A. Yes, sir. Q. Was there any one else that took any property that was in the station that belonged to your husband? A. McClung Brothers, Simmons Parts Company and the Blue Ridge Grocery. Q. Did any of these people, Simmons Parts Company, Blue Ridge Grocery, McClung Brothers or the Standard Oil Com pany of New Jersey, ever tell you that this property on the station belonged to him or any one of them and were 92 Supreme Court of Appeals of Virginia
Mrs. Mary C. Johnson page 114 ~going to take it? A. No, sir, they never said that. Q. Did the Standard Oil Company of New Jersey ever say that this was their property and they were going to take it over? A. No, sir. Q. Never told you that at all? A. No, sir. Q. Simmons Parts Company never told you that? A. No, sir. Q. You worked down there in the station and checked up the cash that came in during the day? A. Yes, sir. Q. How long was that station open, or was it ever actually closed to the public? A. There was one day that th~ station was closed. I dont remember how long, but there was only one day to my knowled~e that it was closed. Q. Did any one ever inform you anything about this property other than the fact that they had a check that had come back that Standard Oil Company had a check that came back for six hundred and some odd dollars -- Mr. Perry: Objection as that is very misleading. Mr. Taylor: Q. I will put it this way. Did Mr. Hewlett or Mr. Hawkins, either one of them, ever tell you that Standard Oil Company was the owner of that property or did either of these page 11 S ~gentlemen tell you that Rodney Johnson owed them $643.96 for a check that had come back? A. When Mr. Hewlett and Mr. Hawkins came up to my house on the night he left, that was on the 7th, Mr. Hewlett was talking to me about a check for $643.00 and something that was "No Good.' I thought that was against the station bill until we went down there. Q. Mr. Hewlett told you that a check of Rodney Johnson's had come back for $643.96-you thought th;i.t was against the station? A. I thought that was all he owed them. Q. Did either of them ever inform you that they were the own ers of the property in the station or that they were taking the sta tion over? First National Bank of Waynesboro v. R.H. Johnson et als. 93
'lYirs. lvlary C. Johnson
A. No, sir.
CROSS EXAMINATION
By Mr. Perry: Q. Just what interest in that station did you have? Did you have any interest in that property or in the lease? A. \,\Then my husband borrowed the money to stock the sta tion I had endorsed the note and I had helped him. Q. Answer the question please-Did you have any interest in that lease? A. I thought I did. Q. \,\That interest did you have and how did you get it and who did you get it from? A. What was his was part mine. page 116 ~ Q. Your only interest in the station was the senti mental interest from the fact that he was your husband? A. I had· helped him to get the money to stock the station he could not get it anywhere else. Q. Did he transfer to you in any way whatever any of that merchandise ? A. No, sir, he did not put it in writing. Q. Did he put it any other way? A. I don't know how to answer that-it looks like what was his was part mine. Mr. Perry: That is not so in law-a wife does not own what her husband owns. By Mr. Perry: Q. Did you buy any part of that filling station from your hus band? A. No, sir. Q. Did you own any part of that filling station-did you own by any contract whatever with your husband, any part of that merchandise ? A. No only the money that he needed when he bought it. He borrowed· the money. Q. You. knew that your husband had absconded with another woman on the morning of the 8th? A. I thought he had, yes, sir. Q. You have found out since that he had done so? 94 Supreme Court of Appeals of Virginia
Mrs. Mary C. Johnson
A. As near as I can find out, yes, sir. Q. You actually knew that he was running away page 117 ~from town on the night of the 7th? A. No, sir. Q. You called the Sheriff? A. I thought he was going away. Q. You tried to get a warrant for him? A. Yes, sir. Q. And on the morning of the 8th, you went down to the fill ing station? A. Yes, sir. Q. You had stayed away from that station for the previous two or three weeks because he had another woman in the station? A. Yes, sir. Q. When you went down to the station on the morning of the 8th, you knew that you did not have any interest whatever in any of that property? A. No, sir, I did not know that. Q. You found out that you did not have any interest? A. No, sir. Q. You don't know it yet? A. No, sir.
RE-DIRECT EXAMINATION
By Mr. Taylor: Q. Mr. Perry has been very insistent about what interest you had in that station. I will ask you whether or not any agent or agents of the Standard Oil Company of New Jersey didn't have you present at every time they counted money page 118 ~that was taken in from the proceeds of the day's sales from the 7th up until the 11th, the day Mr. Harding took it over? A. Yes, sir, what they had sold while their inventory was being taken. The Commissioner : When the levy was made, was -the article claimed by Simmons Parts Company on the premises? Mr. Taylor: She said she did not know. By the Commissioner : First National Bank of Waynesboro v. R. H. Johnson et als. 95
Nlrs. },,[a,ry C.Johnson
Q. When Mr. Coyner came there on the afternoon of the 11th, were the articles that your husband had purchased from Simmons Parts Company on the premises? ' A. I cannot remember whether they were or not. Q. Had you removed them from the station to your home? A. Yes, sir. · Q. Did you later move them back to the station? A. Mr. Simmons had it moved back. Q. Do you know what happened to it? A. Put in the station. Q. Have you seen these things since they were put back in the station? A. I don't think I have. Q. You cannot recall when they were moved back to the sta tion; whether before or after Mr. Coyner came? ,A. No, sir. It must have. been after Mr. Coyner came because Mr. Harding gave me a check and I think he had made an agree ment with Mr. Simmons about the same equipment. page 119 Mr. Taylor: I will have a list made up which I will introduce of the Simmons merchandise and try to check that with Mr. Coyner's levy to ascertain whether or not it was on the station at the time the levy was made. I think this will clear the thing up.
RE-CROSS EXAMINATION
By Mr. Perry: Q. One of those cash registers or adding machines was sent to your home? A. The Standard Oil Company told me to get them out. Q. The Standard Oil Company of New Jersey told you-the representatives down there Mr. Hawkins or Mr. Hewlett told you those things had to be taken out of the station? A. Yes, sir. Q. Did they tell you that before you moved the Simmons stuff? A. Yes, sir. Q. That is why you moved it? A. Yes, sir. Q. What else did you move out? A. I don't recall. 96 Supreme Court of Appeals of Virginia
il'Irs. 1vl ary .C. Johnson
Q. That was all before Mr. Harding took over? A. _ As far as I can remember, it was. Mr. Edmunds: Counsel for McClung Brothers at this point desires to ma~e a stipulation: McClung Brothers recognizes that they have 119 legal right to the personal property taken from the R. H. Johnson Service Station unless it be by vir- page 120~tue of their attachment proceedings. A list of the per sonal property taken by McClung Brothers is filed in this case and the value of the same-statement of the value of same will be filed.
RE-DIRECT EXAMINATION
By Mr. Branaman: Q. There was a grease gun involved in the purchases from Simmons Parts Company? A. Yes, sir. Q. That was on the premises-at the filling station site as part of the equipment when Rodney Johnson left? A. Yes, sir. I don't know about the grease gun. I imagine it was. Q. · Rodney Johnson left on the night of the 7th? A. Yes, sir, as far as I know .. Q. The grease gun was there when he left? A. You mean the equipment that amounted to about $400.00? Q. Yes. A. That was in the station. Q. All in the station? A. Yes, sir. Q. And Simmons was there on the 11th about four-thirty in the afternoon when Mr. Coyner came in and served you and the others with attachment papers? A. Yes, sir. Q. He served Simmons right there inside of the station where you were? page 121 ~ A. Yes, sir. Q. The equipment had not been taken to your resi dence at that time? A. I don't remember the day that it was taken up to the house. Q. Was it before or after the 11th? First National Bank of Waynesboro v. R.H. Johnson et als. 97
Mrs. Mary C. Johnson and Mr. Hewlett
A. I think it was up at my house at the time the levy was made.
WEDNESDAY, NOVEMBER 19, 1941., the taking of deposi tions is here resumed pursuant to adjournment.
PRESENT : Same parties.
By Mr. Edmunds: As Counsel for McClung Brothers, I want to file a statement showing the value of the merchandise taken over by McClung Brothers with the consent of Mrs. Johnson-it shows the list price of each item. At the same time, counsel for McClung Brothers desires to file an open account with the Com missioner, which was not included in the sum the attachment was taken out for and on which judgment was obtained. This account is in addition to that sum. It is under oath. Mr. Perry: I think this hearing is for judgments and attach ments only. The Commissioner : I think it can be filed. Mr. Perry: The Standard Oil Company of New Jersey, here produces a lease dated the 26th day of April, 1941, to page 122 ~ R. H. Johnson-"Account 437, located at the inter- section of the Jefferson Highway and Commerce Ave nue," for the term of one year, with an annual rental of $1680.00, payable $140.00 a month on the first day of each month in ad vance.
CROSS EXAMINATION (Resumed)
By Mr. Taylor: Q. Mr. Hewlett, I hand you here a lease purporting to be executed on the 26th day of April, 1941, between the Standard Oil Company of New Jersey and R. H. Johnson. Please tell the Court whether or not you were present when that lease was ex ecuted? A. Yes, sir, I was present and that is my signature there as a witness. Q. On that lease? A. Yes, sir. Q. This lease covers the property located at the intersection of 98 Supreme Court of Appeals of Virginia
Mr. Hewlett the Jefferson Highway and Commerce Avenue in Waynesboro? A. That is right. Q. That is the property that Johnson was operating as a filling station property at the time-he left Waynesboro on July 7th, 1941? A. Yes, sir. Q. You, I believe, testified that you, as a representative of the Standard Oil Company of New Jersey, took over these premises on the morning of the 8th of July under this lease? page 123 ~ A. Yes, sir, that is right. Q. What clause in that lease did you take over this property under? A. Clause (8). Q. Please read it into the record. A. (Reading) " ( 8) It is agreed that if any rent shall be due and unpaid or if default shall be made in any of the covenants herein contained, then it shall be lawful for Lessor without formal demand or notice of any kind to re-enter said premises, remove all persons therefrom and terminate this lease." Q. And that is the clause of the lease that you re-entered the premises according to your testimony and took over? A. Yes, sir. · Q. Did you notify any person who was in charge of these premises at that time that you were taking over the property? A. Only sent Mr. Hawkins there to take charge according to the terms of that lease. I did not feel it necessary to make any other statements. Q. You did not feel it necessary to make any statements or show any authority to any one who might have been in charge? A. Other than the terms of the lease. Q. Did you take this lease with you or exhibit it to the per son in charge of the filling station? page 124~ A. No, sir. Mr. Hawkins was in charge whP-n it was opened that morning. Q. How did he get in charge? A. He went and took charge. Q. Was the station left un-attended by Johnson? A. Mr. Hawkins had made arrangements with Johnson's broth er to work for him. Q. Hawkins had made arrangements with Merlin Johnson to work for him? First National Bank of Waynesboro v. R.H. Johnson et als. 99
Mr. H-ewlett
A. Yes, sir. Q. When were these arrangements made? A. The night before Mr~ Hawkins asked· Johnson to be there the next morning. Q. To be there the next morning? A. Yes, sir. Q. That was on the night of July 7th? A. Yes, sir. Q. At what time does the filling station close? A. At that time, you mean? Q. Yes, sir. A. It was staying open until between ten and elevtn dclock at that time. Q. At that time the Lessee of the bui]ding had been a.way from the building about two or three hours ? A. That is approximately correct. Q. He could have been to a picture show, so far as you knew or any agent of your company knew? page 125 ~ A. So far as I definitely know, that may be correct, but I had reasons to believe that he was gone. Q. You did not know that? A. No, sir, I did not definitely know it but I suspected it and had reasons to feel that way about it. Q. Your lease reserves the title to certain equipment such as is used in connection with the operation of a filling station? Mr. Perry: I object to that question on the ground that the lease does not reserve title. That lease is a lease for that property as shown by the lease itself. By Mr. Taylor: Q. In this lease, there is certain listed equipment that is neces sary in the operation of a filling station that was put in possession of the Lessee and allow~d to remain there as the property of Stand ard Oil Company? A. Yes, sir. Q. Is there any merchandise or any saleable produtts mention ed in that lease as being the property of the Standard Oil Company? Mr. Perry i Objection as the lea-se is the best evidence of what it contains? ,A.. So far as I kndw, it is not. Q. According to your previous testimony, you did take over 100 Supi"eme Court of Appeals of Virginia
Mr. Hewlett everything that was in the filling station? A. Yes, sir. Q. Under what authority or right did you have to page 126 ~take over the saleable merchandise in the filling station? A. When I took possession of the filling station, I took an inventory to be credited to an outstanding account owed us. Q. You did not answer my question. Did you have any author ity of any kind to take over the stock of merchandise at this filling station from any source. A. Only I did it. Q. Paragraph 2 or Clause 2 of this lease reads: "It is agreed that this lease shall be automatically renewed from year to year unless and until either party gives to the other fifteen ( 15) days' prior written notice of its intention to terminate the lease at the end of the first year or at the end of any subsequent yearly period." There was no notice of any kind any one of your intention to ter minate the lease? A. Paragraph 8 gave me the privilege of doing that. Q. Please answer my question. Was any notice of any kind given to any person of your intention to terminate the lease? A. No, sir. It was made with Johnson and he was not there and there was no one to give notice to. Q. There ws no notice given? A. No, sir. Q. You testified the other day, I believe, that there was some rental due the Standard Oil Company of New Jersey July 7th at the time you entered these premises. Please page 127 ~ tell the court wi1at rental was due? A. From July 1st. Q. The rental was due from July 1, 1941 to July 7, 1941? A. Yes, sir . . Mr. Perry: Objected to on the ground that the least itself makes the entire rental for the month due on the ~rst day of the month and this question may be misunderstood to mean th~t there was only .a fractional part of a month due then. By Mr. Taylor: ·: Q. On July 7th, the Standard Oil Company of New Jersey gave Johnson credit for $31.61, as shown by the answer of the Standard Oil Company as rent. Will you tell the. Court for what period -o.f time that covers ? First National Bank of Waynesboro v:R. H:Johnson et als. 101
Mr. Hewlett
A. Gave him credit for what? Q. $31.61. A. We charged him with $31.61. Q. ·what was that charge for? A. For the first seven days' rent. Q. Seven days rental on the basis of $140.00 a month? A. Yes, sir. Q. Then it is not true as Mr. Perry states that on the first day of July there was $140.00 due the Standard Oil Company of New Jersey instead of one day at the rate of $140.00 a month? A. You will find the rent according to that contract is due on the first day of each month payable in advance. page 128 ~ Q. 'vVas that contract of rent complied with accord ing to its terms prior to July 1st ? A. In some cases he had not paid it on the first day of the month. Q. Can you tell us in what cases he had not? A. I could not. He had paid up through June. Q. Can you tell us when the June rent was paid? A. No, sir. Q. Do your records show when it was paid? A. My records would not show it because some times the check is sent direct to Richmond and some times clears through my of.:. fice. I don't recall when ·it was paid. Q. You do say, however, that some times the rent was not paid on or before the first day of the month in accordance with the contract? A. That is entirely possible. Q. Did you ever cause a distress warrant to be issued for the non-payment of advance rent due? A. No, sir. Q. Did you ever enter and take over when the rental was past due a day or two? A. No, sir. Q. You never, before July 8th, 1941, went into the station and took over the merchandise for past due re.nt? A. No, sir.· Q. Was this rental paid at any time during the life of this lease ·strictly accoring to the terms thereof-$140.00 per month in advance? 102 Supreme Court of Appeals of Virginia
Mr. H e111lett
A. I could not tell you. page 129 ~ Q. I hand you a check of the R. H. Johnson Esso Station, dated May 15, 1941, in the amount of $126.09. Please tell the Court who that check is payable to? A. Payable to the Standard Oil Company of New Jersey? Q. In the amount of $126.09? A. Yes, sir. Q. Can you tell the Court whether or not that was for the May rent? A. I would have no way of knowing. Q. That check is dated May 15, 1941 May 13, 1941, I mean? A. Yes,sir. Q. Do you have any way of knowing whether the rent was ever paid according to the terms of this lease contract? A. Only when I would get correspondence from the Richmond office. On all invoices, it is plainly marked that .remittances should be made to the Richmond office and when they are billed for rent, they are supposed to send it directly to Richmond. Q. This lease contract dated April 26, 1941, calls for the pay ment of $140.00 a month rental in advance and the first payment to be made under the lease is May 1, 1941. I would like to know whether -- when you received the May payment of rent? Mr. Perry: Objected to because this witness has stated that he did not receive the rentals; that they were paid to Richmond. If necessary, we can have statement from the page 130.~ Richmond office showing when they were paid. Mr. Taylor: I would like to call for that statement for May, Jane and July rent. The July rent is explained-all we want is for May and June. Mr. Perry:· I will secure it. By Mr. Taylor: Q. When you testified that Mr. Hawkins had made arrange ments with Johnson's brother for Johnson's brother to work for Mr. Hawkins, you are testifying only as to hearsay -or what Haw kins told you? A. I was present when he asked him the night before. Q. Tell us that conversation. A. We went into the station and Merlin Johnson told us that his brother, Rodney Johnson had been in there and told him good- First National Bank of Waynesboro v. R.H. Johnson et als. 103
Mr. Hewlett bye and Mr. Hawkins asked him to close the station that night and be there in the morning at seven o'clock and that he would be there to operate the station? Q. And he would be there to operate the station? A. Yes, sir. ' Q. How much did he agree to pay Johnson for working there for him? A. There was no discussion about wages. Q. Does the Standard Oil Company of New Jersey hire men to work for them and have no fixed salary or what they are sup posed to pay them? Mr. Perry: Objected to on the ground that this evidence is im material and irrelevant. page 131 ~ Mr. Taylor: We disagree with counsel. The evidence is material· and that it has been shown here and ad mitted by the Oil Company that Merlin Johnson was working there and now we want to know who he was working for. A. We had a minimum wage scale and that was what Mr. Hawkins was going to pay him. Q. Then Johnson had nothing to do or say about what he was to get? A. He did not ask any questions that night. Q. Is that a regular practice to hire a man and tell him what you are going to pay him later? Mr. Perry. Same objection. A. That was on a temporary basis. Q. Was that temporary basis explained to Johnson? A. No, sir, not the night before. No details at all were dis- - cussed. Q. Was it ever explained to him? A. So far as I know, it was not. I only know that Johnson worked a very few days for Mr. Hawkins. . Q. Does Mr. Hawkins have charge of hiring and firing people? A. He could have it, yes, sir. · Q. Did you or Mr. Hawkins pay Johnson for his services? A. I don't know. I did not. Bv Mr. Branaman: Q: This is a merchandising business, is it not, involved in this case? page 132} A. And servicing, yes, sir. 104 Supreme Court of Appeals of Virginia
Mr. Hewlett
Q. As I understand it, the Standard Oil Company of New Jersey sold Johnson gasoline, motor oil, greases, perhaps tires and tubes and batteries and delivered them to him at the sta tion involved? Is that right? A. The majority of it was delivered, yes, sir. He came and got some of it. _ Q. How much credit did you extend Rodney Johnson when he opened up that station? A. I don't know the exact figure. We credited him with one truck-load of gasoline on a signed agreement or on "Pay Back" basis. Q. How much credit had you extended him when he discon tinued operating the station? A. He actually owed us for the original load of gasoline that \vas put in there-some matches and that is approximately all he owed us for. Q. You sold property that he had already paid you for? A. No, sir. Q. Have you filed in this suit an itemized statement of all the property that you sold which belonged to R. H. Johnson? A. I have not filed a statement of anything that belonged to R. H. Johnson. I have not sold any merchandise that belonged to him. Q. Didn't you sell and deliver to Johnson or extend him · credit as shown by your account to the extent of some page 133 ~$1200.00 or more? A. We sold him that much merchandise, yes, sir. Q. Was it his when you sold it and delivered it to him? A. It was not his when I sold it. Q. He had paid you for a number of items which appear on the inventory that yoti have filed in this case? A. He may have paid for some of it, yes, sir. Q. How much had he paid for? A. I could not tell you that. Q. You had delivered him a number of items of personal prop erty and he had paid you for those items and those items were in the station when you took it over in July? A. Some of them were. Q. He had paid you for those items? A. Some of them. First National Bank of Waynesboro v. R.H. Johnson et als. 105
Mr. Hewlett
Q. You sold and delivered to Rodney Johnson numerous items of personal property which you inventoried and filed your inventory in this case and he had paid you for some of them? A. For some of them, yes, sir. Q. Was it his-those items? A. That he had paid for, yes, sir. Q. You extended him credit on June 19th for one tank of motor fuel $643.94? A. Yes, sir; Q. And then you extended him credit for another tank of motor fuel, $643.94 as of July 5th? A. No, sir. Q. \.\That did you do with that tank of motor fuel on July 5th, 1941? A. He gave us a check for it. Q. What did you do with the tank of gas that you charged him with on July 5th. What did you do with it? page 134 ~ A. Took it to his station and unloaded it. Q. Did you unload the tank of gasoline there also on June 19th? A. Yes, sir. Q. You say you extended· him credit for the tank of gasoline on June 19th, $643.94? A. Yes, sir. Q. What did he do with that gasoline on June 19th? A. Sold it, I suppose. Q. To his customers? A. I suppose he did. He may have given some- of it away. Q. He supplied his customers? A. Yes, sir. · Q. Do you recall the inventory value of the items of personal property which you sold and delivered to Rodney Johnson for which you had been paid? · A. No, sir. Q. Does it show on your inventory in this case? 'A. · ·So far as I know, ·it does not. · Q. Will you make the calculations and submit ~t to the -Master Commissioner. I want a list of the articles and the ·prices which entered into the~ inventory taken on the 8th for which Rodney John:Son hacf-paid. ..._ · : -· A. Yes, sir. 106 Supreme Court of Appeals of Virginia
Mr. H ett1Lett
RE-CROSS EXAMINATION
By Mr. Taylor: Q. I hand you a paper and ask you if that is in your hand writing? page 135 ~ A. No, sir. Q. It is on Standard Oil Company's stationery. Can you identify the handwriting? A. I could not definitely. It looks like Mr. Hawkins' but I could not be definite. Q. When Johnson bought gasoline from the Standard Oil Com pany, he was given an invoice. for that purchase at the time the · delivery was made ? A. Yes, sir. Q. Were those deliv~ries made on a cash basis? A. Majority of them, yes, sir. Q. Is it not true that every time a delivery was made to John son and he receipted for same, that part of the rent for the period of the month in which the delivery was made was included in the invoice? A. No, sir, I don't think so. Q. I hand you here a statement of the Standard Oil Company of New Jersey, No. 19916, sold to R. H. Johnson, C.O.D., dated July 5, 1941, which total invoice amounts to $643.94. Please tell the Court whether or not there is included on that invoice any fixed amount for rent. A. It is mentioned here. Q. How much? A. One-half cent a gallon. Q. And the total amount in dollars and cents shown to be on the rent account is how much on that invoice? .. A. $18.00. page 136 ~ Q. Was that invoice paid for to Standard Oil Com pany? A. That was t.he check that was returned. Q. It was paid for by check and the check was later returned unpaid? . ' l A. Yes, sir, that is correct. This invoice, I might add, was made in Richmond and this one-half cent per gallon is marked "Add Rent" to be credited on the 'Pay Back" basis -of the original First National Bank of Waynesboro v. R. H. Johnson et als. 107
Mr. Hewlett load and should have been so credited. It was on the "Pay Back" basis. Q. Then the Richmond office is not correct in that statement? A. That one-half cent per gallon was on the "Pay Back" basis of the original load. Q. It says credit on rent? A. Yes, sir. Q. Hand you here an invoice of the Standard Oil Company of New Jersey, No. 19421, dated June 19, 1941, Sold to R. H. Johnson, Account 437, C. 0. D., which invoice covers merchandise, taxes, rent and ask you to tell the Court whether or not there is an item on that invoice for rent? A. No, sir. Q. What does it say? Read the items on the invoice? A. Bulk Esso, 2813 gallons at .1045, total $293.96; bulk Essa Extra, 787 gallons at .1245, totals $97.98, total $391.94, as Per Agreement Add 0c per gallon, $18.00 plus State and Federal Tax 60c gal. $234.00, total $643.94. Q. "As Per Agreement $18.00." Was that an agree page 137 ~ment that a certain amount of each purchase was to be taken and applied to the June rent account by the Oil Company? A. Not to my know ledge. Q. I hand you Invoice No. 19739, of Standard Oil Company of New Jersey to R. H. Johnson, dated June 24, 1941, in the amount of $643.94 and will ask you to read into the record what it covers? A. It covers gasoline, Esso and Esso Extra and mentions the rent. Q. What does it say about rent? A. "Plus Rent, 0c a gallon, $18.00. Q. Does not say anything about "By Agreement." A. No. Q. That is the same amount deducted as was deducted_ from the invoice that is marked "Per Agreement"? A. Yes, sir. Q. So, from June 19th through July 5, 1941, the Standard Oil Company of New Jersey has acknowledged receiving three payments two payments each marked Rent of $18.00 and one ear marked "Per Agreement" of $18.00, according to those invoices? 108 Supreme Court of Appeals of Virginia
Mr. Hewlett
A. Yes, sir, according to those invoices. Q. These invoices were all paid in full by Johns.on, were they not? A. Yes, sir.
RE-DIRECT EXAMINATION
By Mr. Perry: page ~38 ~ Q. By whom were these invoices issued, your office or by Richmond? A. . Richmond. Q. I call your attention to Exhibit S. C. Co. Ex. No. 2" with your evidence, which was the original contract for the sign be tween the Standard Oil Company of New Jersey as Lessor by F. H. Shehan, and R. H. Johnson as Lessee, witnessed by R. W. Harkins and dated May 2, 1941, which provides in the clause as to "Future Rentals," as follows: "In addition, Lessee agrees to pay the sum of One-half 01c) for each gallon· of gasoline and motor fuel purchased by Lessee from Lessor for re-sale upon the premises until the total sum of two hundred fifty Dollars ·($250.00) has been paid. Said rental is to be added on each invoice for gas oline or motor fuel until the entire amount has been paid. There after no rent shall be payable during the balance of the term here of." After having this called to your attention, can you state from your own personal knowledge how that one-half cent was added on the invoices of each gallon of gasoline delivered to Johnson as "Per Agreement" in the case of one invoice, has to do with rental of the premises -- the real estate or the rental of the sign-from your own personal knowledge, can you state? A. From these invoices, it is not rental on the property-on the real estate. Q. Why do you say so? A. That was payable in a lump sum. page 139 ~ Q. So far as the records of your office go, was that one-half cent per gallon added to each gallon sold--do your office records show sales of gasoline to Johnson and the amount received? A. No, sir. Q. That is all from Richmond? A. Yes, sir. First National Bank of Waynesboro v. R.H. Johnson et als. 109
Mr. Hewlett
Q. So far as the records show, has Johnson ever paid one-half cent per gallon for rental of the sign-so far as your office records show? A. No, sir.
RE-CROSS EXAMINATION
By Mr. Taylor: Q. The sign that you are testifying about was never delivered and erected on the property? A. It was delivered. Q. You mean to say that he paid the sum of $54.00 for the rental of a sign that has never been erected ? Mr. Perry: Objected to as this witness had stated that these items did not clear through his office and that he does not know. By Mr. Taylor: Q. was the sign ever on thf' station? A. It is there now. Q. When was it delivered? , A. I don't know. page 140~ Q. Was it there at the time you took over the station? A. You mean on July 8th? Q. Yes, sir. A. It was there. Q. It had been delivered? A. It was there on-the property. Q. Do you know when it was delivered? A. I don't know the date? Q. Had it been there a week or a month? A. It had been there some time. I don't know exactly how long. Q. What do you call "some time"? A. May have been there two' weeks or three weeks or a month. I don't know. Q. Was the lease for the sign that you have testified to ever recorded in any of the Courts? A. So far as I know, it was not. Q. Was the lease for the filling station ever admitted to record? A. So far as I know, it has not. 110 Supreme Court of Appeals of Virginia
Mr. Hewlett and Merlin Johnson
Q. Is this the lease that Mr. Perry exhibited here the original lease on the property-the one that was in force at the time John son left on July 7th? A. Yes, sir. Q. Does it show on the face of the lease that it had ever been recorded or marked "Recorded" by the Clerk of any Court? page 141 r A. No, sir, it had never been recorded, so far as I know. Q. Has a copy of that lease ever been recorded, to your know ledge? A. No, sir. Mr. Perry: I will have to get some one here from Richmond to show just what that one-half cent a gallon is-the man who knows. Mr. Branaman : Let them write you a letter and ~ubmit it to Mr. Taylor here.
Merlin Johnson, a witness of lawful age, on behalf of the Plain tiff, being first duly sworn :
DIRECT EXAMINATION
By Mr. Taylor: Q. This is Merlin Johnson? A. Yes, sir. Q. You are a brother of Rodney Johnson? A. Yes, sir. Q. Where were you working on July 7th? A. Working at the station for him? Q. The station run by your brother? A. Yes, sir. Q.. l\iVho were you working for? A. R. H. Johnson. Q. The night of July 7th, did you close the station up? A. Yes, sir. page 142r Q. Who opened the station on the morning of July 8th? A. I did. Q. How long did you continue to operate the. station? First National Bank of Waynesboro v. R.H. Johnson et als. 111
. Merlin Johnson
A. I think there was one day and maybe more that we did not service cars at all. Q. Were you working there for your brother, R. H. Johnson? A. Yes, sir. Q. Were you working for the Standard Oil Company of New Jersey after your brother left? . · A. The night of the 7th, Mr. Hawkins told me to open up as usual and I did so. · Q. He said to open up as you usually did? A. Yes, sir. Q. Had you been in the habit of opening the station? A. Yes, sir. Q. Did you close the station at night when it was your night to work? A. Yes, sir. Q. Mr. Hawkins did mention to you to open up as you usually did? A. Yes, sir. Q. Did Mr. Hawkins or Mr. Hewlett or any one else tell you that your brother had defaulted and left and that they were taking . over the station? A. No, sir. Q. Did the Standard Oil Company of New Jersey page 143 ~or any agent of the Standard Oil Company of New Jer sey ever employ you to operate the station? A. No, sir. Q. Did Mr. Hawkins or any other officer or agent of Standard Oil Company ever pay you anything for working at the station? A. No, sir. Q. Who did you, in your own mind, think you were being em ployed by or working for when you were there after your brother left? Who were you working for? A. I supposed I was working for Johnson? Q. Your brother had hired you? A. Yes, sir. Q. To help him? A. Yes, sir. Q. He had never fired you? A. No, sir. Q. And no one else had ever employed you? 112 Supreme Court of Appeals of Virginia
Merlin J o/inson
A. No, sir.
CROSS EXAMINATION
By Mr. Perry: Q. On the night of July 7th, Mr. Hawkins and Mr. Hewlett of the Standard Oil Company came to the station? A. Yes, sir. Q. You told them that your brother had left? A. Yes, sir. I told them what my brother told me. page 144 ~ Q. What did you tell them? A. That he had left an that he had been in there to say good-bye to me. Q. Did you tell them for what point he left? A. He did not tell me. · Q. You said he- was gone? A. He came in and said "Good-bye" that he was leaving. Q. When he left, what instructions did he give you about run- ning the station? ' A. None. Q. Just left you alone? A. Yes, sir. Q. Mr. Hawkins came down that night and both he and Mr. · Hewlett talked to you and Mr. Hawkins told you to open up in the morning as usual? A. Yes, sir. Q. Did he tell you anything about closing that night? A. No, sir. Q. The next morning was Tuesday. What time did Mr. Haw- "l Merlin Johnson Q. What day did you close? A. Wednesday. Q. The place was closed up so far as the servicing of cars was concerned on \T\T ednesday? A. Yes, sir. Q. At what time? A. Around noon. Q. How long did the station, so far as the selling of oil and gasoline, remain closed ? A. Until Mr. Harding took it over. Q. You did nothing more until Mr. Harding took it over? A. No, sir. Q. You worked there a few days for Mr. Harding? A. One day. Q. Was that by arrangement with Mr. Harding? A. Yes, sir. · Q. How much did he pay you? A. He has paid me nothing yet. Q. You.expect to be paid? A. Yes, sir. Q. What did you do there between the time the station was closed at about twelve o'clock until Mr. Harding took it over? A. We taken an inventory-me and the other boy page 146 ~that worked there cleaned the grease rack. Q. You knew that your brother had gone and had gone for good? A. I don't know whether he has gone for good. Q. You knew he had left the state? A. No, sir. Q. What did you know? A. Very little. Just what he told me-he came in and told me good bye that he was leaving. Q. Have you had any further information about him? A. No, sir. Q. Did Mrs. Johnson say what happened? A. No, sir. Q. Hawkins and Hewlett said nothing? A. No, sir. Q. Asked you no questions? A. No, sir. 114 Supreme Court of Appeals of Virginia M erlfo J olmson Q. From whom did you have orders while you worked there on the morning of the 8th. Mr. Hawkins told you what to do? A. I serviced cars. Q. He told you what to do? A. He asked me to open up. Q. He asked you the next day to go on with your work? A. Yes, sir. · Q. When he started to take the inventory, did he ask you to help him take the inventory? page 147 ~ A. Yes, sir. Q. He and you and Mr. Hewlett were all there prac tically at the same time? A. Mr. Hawkins was but I don't know about Mr. Hewlett. He was in and out. Q. Your brother has never paid you for that time? A. No, sir. NO FURTHER WITNESSES APPEARING, THE TAKING OF THIS EVIDENCE IS HERE CONCLUDED. page 148~ STANDARD OIL COMPANY OF NEW JERSEY (Furnished by Mr. W. J. Hewlett upon request of Mr. Branaman at taking of his deposition) ORIGINAL INVENTORY 1933 gals. Esso ...... 1695 327.64 1159 gals. Esso Extra ...... 1895 219.63 22 gals. "Std." Blue ...... 16 3.52 106 gals. Esso Motor Oil ...... 735 77.91 '106 1-4 gals. Esso Motor Oil ...... 715 75.97 49 gals. Essolube M. Oil ...... 545 26.70 32 Yi gals. Essolube M. Oil ...... 525 17.06 9 3-4 gals. Actol Motor Oil ...... 275 2.68 111-4 gals. Flusing Oil ...... 18 2.03 13-~ gals. Perma Guard ...... 1.80 11.70 11-1-4 Tri Rad. Antifreeze ...... 65 1.79 3 Def rosters ...... 1.00 3.00 1 Master Heater ...... 7.77 · 7.77 First National Bank of Waynesboro v. R.H. Johnson et als. 115 1 Regent Heater ...... 9.57 9.57 1 Monarch Heater ...... 9.57 9.57 30 600-625-650 Cross Links ...... 2.20 6.60 1-600-i7 \Veed Chain ...... 4.46 4.46 13 X Flush ...... 45 5.85 8 Super X Flush ...... 51 4.08 3 1pt. Brake Fluid ...... 42 1.26 11 ~ pt. Stop Leak ...... ·...... 21 2.31 6 0 pt. Kot 0 ...... 11-1-3 .68 page 149 ~9Yi pt. Spot Remover ...... : .1666 1.50 7 ~ pt. Rust Preventive ...... 21 1.47 3 ~ pt. Furniture Polish ...... 24 .72 8 Nu Trim ...... 30 2.40 4 ~ pt. Trim Polish ...... 30 1.20 2 1 pt. Trim Polish ...... 45 .90 8 Lighter Fluid ...... 0666 .53 10 Handy OU 1 oz...... 06 .60 2 Handy Qil 4 oz...... 15 .30 1 Al Handy Filter Replacement ...... 60 .60 1 Rl Atlos Filter Replacement...... 60 .60 7 Small Repair Kits ...... ~ ...... 09 :63 37 Spark Plugs ...... 41 15.17 12 Polishing Cloths ...... 21 2.52 10 Lock Gas Tank Caps ...... 75 7.50 4 Plain Gas Tank Caps ...... 21 .84 11 AC Air Cleaner Elements ...... 30 3.30 14 W. W. Blades ...... 21 2.94 11 W. W. Arms ...... 45 4.95 42 Valve Cans...... 035 1.47 18 Valve Caps ...... 035 .58 6 10c Tape ...... 05 .30 17 No. 1 Tire Boots ...... 03 .51 27 No. 2 Tire Boots ...... 04 1.04. 4 No. 3 Tire Boots .....·...... 07 .28 5 No. 4 Tire Boots ...... 10 .50 2 63 Bulbs ...... 042 .08 page 150~7 4030 Bulbs ...... 66 4.62 7 1154 Bulbs ...... 15 1.05 8 81 Bulbs ...... 06 .48 10 1116 Bulbs ...... 114 1.14 10 87 Bulbs ...... 09 .90 7 1000 Bulbs ...... 114 ·.SO 116 Supreme Court of Appeals of Virginia 10 1129 Bulbs ...... 102 1.02 9 1158 Bulbs ...... 114 1.03 8 1133 Bulbs ...... 114 .91 9 14 Bulbs ..... ; ...... 054 .49 9 13 Bulbs ...... 054 .49 10 55 Bulbs ...... 042 .42 20 2300 Bulbs ...... 18 3.60 16 Flashlight Batteries ...... 065 1.04 2 Flashlights ...... 47) .92 .45) 65 Fuses ...... 0186 1.20 1 Side View Mirror ...... 1.40 . 1.40 1 Fog Lamp ...... 3.05 . 3.05 1 Bumper Guard ...... 2.16 2.16 25 Goggles ...... 15 3.75 12 Goggles ...... 45 5.40 6 Goggles .· ...... 56 3.36 2 Goggles ...... 75 1.50 23 Glass Banks ...... 25 5.75 3 ASl Batteries ...... 7.97 . 23.91 1 XP17 Batteries ...... 7.97 7.97 page 151 ~1 Kl Battery ...... 4.23 4.23 3 K2 Batteries ...... 5.23 15.69 1 N Rental Battery ...... 3.00 3.00 3 550-17 Atlas Tires ...... 7.56 22.68 1 650-16 Atlas Tires ...... 10.00 10.00 8 600-16 Atlas Tires ...... 8.24 65.92 3 600-16 Jr. Atlas Tires ...... 6.59 19.77 2 550-17 Jr. Atlas Tires ...... 6.05 12.10 15 C16 Tubes ...... 1.78 26.70 7 C16 Jr. Tubes ...... 1.16 8.12 2 Cl7 Jr. Tubes ...... 1.16 2.32 3 B19 Jr. Tubes ...... 1.10 3.30 2 A2021 Jr. Tubes ...... 1.01 2.02 2 83 Mile Rak Tubes ...... 85 1.70 163 Mile Rak Tubes ...... 92 .92 11 44 Mile Rak Tubes ...... 76 8.36 2 33 Mile Rak Tubes ...... 82 1.64 6 23 Mile Rak Tubes ...... 75 4.50 1 637 Fan Belt ...... 55 .55 2 652 Fan Belts ...... 68 1.36 1 662 Fan Belt ...... 68 .68 First National Bank of Waynesboro v. R.H. Johnson et als. 117 2 651 Fan Belts ...... 68 1.36 1 619 Fan Belt ...... 63 .63 4 658 Fan Belts ...... 55 2.20. 1 602 Fan Belt ...... 50 .SO 2 607 Fan Belts ...... 60 1.20 page 152 ~ 1 659 Fan Belt ... ·...... 50 .50 1 657 Fan Belt ...... 65 .65 1 614 Fan Belt ...... 68 .68 1 635 Fan Belt ...... 68 .68 1 639 Fan Belt ...... 50 .50 3 603 Fan Belts ...... SO 1.50 1 617 Fan Belt ...... 25 .25 l 606 Fan Belt ...... 25 .25 5 No. 1 Battery Cables ...... 24 1.20 4 No. 2 Battery Cables ...... 27 1.08 5 No. 3 Battery Cables ...... 32 1.60 4 No. 4 Battery Cables ...... 32 1.28 3 No. 5 Battery Cables .. ·...... 40 1.20 6 No. 6 Battery Cables ...... 46 2.76 6 No. 7 Battery Cables ...... 51 3.06 4 No. 8 Battery Cables ...... 51 .204 3 No. 9 Battery Cables ...... 68 2.04 6 No. 10 Battery Cables ...... 70 4.20 4 No. 12 Battery Cables ...... 95 3.80 2 No. 13 Battery Cables ...... 1.11 2.22 29"-l 1-4" Radiator Hose ...... 17 .42 75"-10" Radiator Hose ...... 20 1.23 72"-1 3-4" Radiator Hose ...... 23 1.38 72"-2" Radiator Hose ...... 26 1.56 • 40 No. Chassis Lubg...... 085 3.40 132 No. Expcr. Comp ...... 12 15.84 17 No. U Wheel Gr ...... 135 2.29 page 153 ~2 gal. Penetrating Oil ...... 2.901/5 1.16 Yi gal. Ru Glyde ...... 1.95 .98 3 No. Water Proof. Gr ...... 16 .48 4 Sticks Door Ease ...... 22 Yi .90 50 Dill Patches ...... 0356 1.78 25 Valve Stems ...... 25 6.25 27 Large Dill Patches ...... ·...... 7-1/8 1.92 21 Battery Bolts ...... 50 .53 1 V. E. L. Sales Maker Kit ...... 2.75 2.75 40 V. E. L. Work Sheet Pads ..... ~ ...... 05 2.00 118 - Supreme Court of Appeals of Virginia Total ...... 1251.38 page 154 STATE OF VIRGINIA) )To wit: CITY OF RICHMOND ) I, W. L. Crumpler, being first duly sworn before the undersign ed Notary Public, do solemnly swear that I am Assistant Credit Manager, and, as such, agent of Standard Oil Company of New Jersey, a corporation incorporated in the State of Delaware, and that to the best of my knowledge and belief the following are true and correct statements : 1. On April 19, 1941, Mr. R. H. Johnson signed an agreement, which agreement is attached, under which we were to bill him, effective April 11, 1941, an additional ~c per gallop in excess of the regular price in effect on date of delivery. The money so ac cumulated was to be applied in liquid~tion of an amount covering a load of motor fuel to be delivered to the station operated by Mr. Johnson. After the signing of this agreement, the next delivery was made April 29, 1941, for $470.75. This was naturally the delivery we assumed was to be liquidated, but on June 24 we received an amount to cover this delivery. It developed that a larger delivery was made on June 19 for $643.94, and it was this larger delivery that it was desired to let stand and be liquidated. During the month of May deliveries were made and the ~c per gallon additional was collected on the motor fuel deliver page 155 ~ed, in accordance with.the attached agreement. When it was decided to allow the larger delivery 'of June 19 to stand, it was also agreed that collections made on any deliveries , during May and June would be applied against the June 19 delivery. The additional payments made during May and June therefore appear on the statement that accompanied our affidavit of July 17, 1941, as "May Collections-$66.56" and "June Collections $40.06," these collections having no relation to any rent charged Mr. Johnson for use and occupancy of the service station property. · ·2. Our May rental charge of $140.00 was reduced $13.91 due to a delay in the new station opening and the difference of $126.09 was received by us on May 20, 1941. Our June rental charge of $140.00 was paid and included with a remittance totaling $178.75 received by us July 8, 1941. Dated this 25th- day of November 1941. First National Bank of Waynesboro v. R.H. Johnson et als. 119 (S) W. L. CRUMPLER. Subscribed and sworn to on this 25th day of November 1941, by. the said W. L. Crumpler, before me, Notary Public, within and for the said City of Richmond, State of Virginia. (S) GARLAND V. WEBSTER Notary Public. My commission expires August 18, 1942. page 156~ Date 4-19-41. Standard Oil Company of New Jersey Credit Department P. 0. Box 1456 Richmond, Virginia Name R. H. Johnson Address East Main & Commerce Sts. Waynesboro, Va. Gentlemen: In order to provide a suitable method by which I may retire my obligation to you, I hereby agree to pay you, effective April 11th, 1941, an additional 0c per gallon over the price in effect at the time of delivery for every gallon of motor fuel which you deliver to me, and hereby authorize you to add said 0c per gallon to the · face of each ticket covering such motor fuel deliveries. Previous authorization has been given for --c per gallon; therefore total additional will be --c per gallon. (Signed) R.H. JOHNSON. page 157~ Exhibit-Standard Oil Co. No. 4-J. M. Perry Hewlett LEASE TO DEALER * AGREMENT made this 26th day of April, 1941, by and * between Standard Oil Company of New Jersey, a Delaware * corporation, having an office at Richmond, Virginia, herein- after called "Lessor," and R. H. Johnson, of ...... Street, Waynesboro, State of Virginia, hereinafter called "Lessee." WITNESSETH: Lessor does· hereby demise and lease unto Lessee, and Lessee agrees to take all that lot, piece or parcel ·of 120 Supreme Court of Appeals of Virginia land situate in the Town or City of Waynesboro, County of Au gusta, State of Virginia, more fully described as follows: Account No. 437, located at the intersection of the Jefferson Highway and Commerce Avenue. together with all rights of way, easements, driveways and pave ment, curb and street front privileges thereunto belonging and to gether with all the buildings, improvements and equip1nent thereon or connected therewith including the property listed under Sched ule "A" hereto annexed. To hold the premises hereby demised unto Lessee for the * period of one ( 1) year beginning on the 1st day of May, * 1941, and ending on the 30th day of April, 1942, to be * used and occupied by Lessee only for conducting a business consisting mainly of the storage and distribution of pet page 158 ~roleum products and automobile accessories on the fol lowing terms and conditions : ( 1) Lessee shall pay the following rent: * * An annual rent of Sixteen Hundred & Eighty Dollars * ($1,680.00) payable in equal monthly installments of One Hundred & Forty Dollars ($140.00) on the first day of each month in advance. ( 2) It is agreed that this lease shall be automatically renewed from year to year unless and until either party gives to the other ( 15) days' prior written notice of its intention to terminate the lease at the end of the first year or at the end of any subsequent yearly period. ( 3) It is understood and agreed that if Lessor is not the owner of the premises herein demised, then the within lease and the estate created hereby are subject to all of the terms; provisions and con ditions of the lease or other arrangement under which Lessor holds said premises, and if for any reason whatsoever and with· or with out the consent of Lessor, Lessor's tenancy is cancelled, terminated or surrendered, then the within lease shall be automatically termin ated and cancelled without further act of any of the parties hereto and without any liability on the part of Lessor. ( 4) Lessee agrees to make no unlawful or offensive use of the premises, and to comply with all statutes, ordinances, rules, order~, First National Bank of Waynesboro v. R.H. Johnson et a regulations and requirements of federal, state and____ page 159 ~icipal governments; to pay to Lessor the rent herein spe- cified ; to accept the premises in their present condition, which is known to Lessee and to assume full responsibility for the condition and use thereof; at Lessee's own expense to keep said buildings, improvements and equipment in good state of repair and to paint same from time to time as necessary; that this lease shall not be assigned nor the premises covered hereby sublet; that no additions or alterations shall be made to the' structure of the buildings, improvements or driveways without the written permis sion of Lessor and that no equipment shall be removed from ser vice without written notice to Lessor, with right in Lessor to take possession of equipment so removed. ( 5) Lessee agrees to pay for all occupationai, license and other taxes ( except real property taxes), necessary for the operation of the service station and to pay all charges for water, gas and electric current that may be consumed on said premises. ( 6) Lessee agrees to indemnify and save Lessor harmless from any and all claims, demands, suits, actions, judgments and recover ies for or on account of damage or injury ( including death) to property or person of himself, his family, servants, agents or other party or parties caused by or due to the condition of said leased premises or the use thereof. ( 7) Lessee agrees at the expiration or other termination of this lease to quit and surrender the premises herein leased in as good order and condition as they now are, ordinary wear, tear, page 160~fire and Acts of God excepted, replacing or paying Lessor the reasonable value of the damages to any prop erty not returned in said condition. (8) It is agreed that if any rent shall be due and unpaid or i~ default shall be made in any of the covenants herein contained, then it shall be lawful for Lessor without formal demand or notic of any kind to re-enter said premises; remove all persons therefrom and terminate this lease. . (9) Lessor covenants that Lessee on paying said rent and per forming the covenants aforesaid, shall and rriay peaceably and quietly have, hold arid enjoy the said leased property for the term aforesaid, subject to the provisions hereof. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be properly executed in duplicate. * STAND ARD OIL CO. OF NEW JERSEY Lessor. 122 Supreme Court of Appeals of Virginia * T. I. CREEDLE, JR. By· FRED H. BILLINGS Witness Operations Division Mgr. * W. J. HEWLETT R. H. JOHNSON Witness Lessee * N ote--All blank spaces to be filled in prior to execution. SCHEDULE "A" 1-12' Step Ladder 1-1-gal. Swing Spout Measure 1-20' Step Ladder 1-% gal. Swing Spout Measure 1 Balcrank Spray Gun 2-=--1-4 gal. Swing Spout Measure 1 No. 4 Gun. 1-1-pt. Swing Spout Measure 1 No. 3 Gun I-Champion Air Compressor 1 No. 5 Gun z-T-86 Calcometer Pumps page 161 ~1 No. 6 Gun 2-T-86 Model Pumps 1-8" Adjustable 1 Set Postal Scales Wrench 1-Motor Oil Can Pan 1 Female Wrench 3-Radiator Cans 1-14" Stillson Wrench 2-Rag Cans 1-Pinch Bar 1-Foamite Fire Gun 1-Lubrication Book 1-Rest Room Chair 1-Ford Clamp-on Tool 1-Tire Changing Stand 1-Flusher 1-Mop Wringer, 1-Eco Air Stand 1-5-gal. Milk Can 1-Set Spark Plug Wrenches 1-5-gal. Funnel 1-Spark Plug Tester 1-1-gal Measuring Can I-Lubrication Tag Punch 1-1-4-gal. Measuring Can 1-Set Lubrication Seat 1-Snow Shovel Covers 1-Metal House 1-0ffice Chair 3-Narro-Lube Motor Oil Outfits 1-Emergency Gun 1-Lawn Mower 1-Pair Hedge Clippers This is to acknowledge receipt of the equipment listed above. It is understood that this equipment is the property of the Standard Oil Company of New Jersey and will be returned upon the expira- tion of this lease. · Signed: R. H. JOHNSON. Witnessed: W. J. HEWLETT (GEN-MKT) 1-.66 Ex. SOCo. No. 5 DELIVERY TICKET & Please make all remittances to INVOICE 19916 · Federal and State tax on gaso STANDARD OIL COMPANY OF NEW JERSEY line and Federal tax on lubri RICHMOND TRUST BUILDING Station RICHMOND, VA. cating oil will be reported and RICHMOND, VIRGINIA paid by Standard Oil Company Date 7-5-41 19 of New Jersey. Sold to R. H. Johnson Cust. No. Dealer No. Address Waynesboro, Va. Customer's Order No. Reg. No. Ship Delivered to Via Miller No. 26 Freight Prepaid Address Account No. 437 Terms C.O.D. Units or Tire Product Gallons Tax · Less Packages Ply or Price State Vol. Total Item Cash Pounds & Fed. Disc. Price (Amount) Disc. Amount Qty. Size (Rate) (Amt.) Bulk Esso 2813 .1045· 293.96 " Esso Extra 787 .1245 97.98 Add State & Fed. Tax .065 per gal. 234.00 Add Rent .005 per gal. 18.00 643.94 Price Ex. Salesman Class Product Equipment Method of Delivery Slip of Code No. Owned Bulk at Rec. Trade T.T.No. T.T. or Hired Plant TR. Owned T.C. D.T.No. & or Hired WH. Tank car Barge THIS IS YOUR INVOICE-Please retain, TR. Owned Dr. TR. & Pipe Line no other will be rendered Pack. or Hired Other Pat'd. No. 1,534,478 ( GEN-MKT) 1-66 Please make all remittances to 19739 DELIVERY TICKET & INVOICE STANDARD OIL COMPANY OF NEW JERSEY Station RICHMOND, VA. Federal and State tax on gaso RICHMOND TRUST BUILDING line and Federal tax on lubri RICHMOND, VIRGINIA Date 19 cating oil will be reported and paid by Standard Oil Company of New Jersey. Sold to R. H. Johnson Cust. No. Dealer No. Address Waynesboro, Va. Custom er' s Order No. Req. No. Ship Delivered to Via Miller No. 26 Freight Prepaid Address Terms Cash Units or Tire Product Gallons Tax Less Cash Packages Ply or Price State Vol. Total Item Amount Pounds &Fed. Disc. Price (Amount) Disc. Qty. Size (Rate) (Amt.) Esso 2813 1045 293.96 Esso Extra 787 1245 97.98 Plus Rent 3600 .005 18.00 State & Fed. Tax 3600 .065 234.00 643.94 Price Ex. Salesman Class Product Equipment Method of Delivery Rec. Trade No. Owned Bulk at Slip of Code T.T.No. T.T. or Hired Plant TR. Owned T.C. Tank car Barge D.T.No. & or WH. & Pipe Line TR. Hired Dr. TR. )'HIS IS YOUR- INVOICE-Please retain, Owned no other will he rendered Pack. or Hired Other Pat'd. No. 1,534,478 JJCLl V CK r l H..,K.J:!., l ~ 19421 INVOICE STANDARD OIL COMPANY OF NEW JERSEY Federal and State tax on gaso Station RICHMOND, VA. line and Federal tax on lubri RICHMOND TRUST BUILDING cating oil will be reported and Date 6-19-41 19 paid by Standard Oil Company RICHMOND, VIRGINIA of New Jersey. Sold to R. H. Johnson Cust. No: Dealer No. Address Account No. 437 Customer's Order No. Req. No. Ship Delivered to Waynesboro, Va. Via Miller No. 26 Freight Prepaid Address Terms C.O.D. Units or Tire Product Gallons Tax Less Pac.\rnges Ply or Price State Vol. Total Item Cash Qty. Size Pounds & Fed. Disc. · Price (Amount) Disc. Amount (Rate) (Amt.) Bulk Esso 2813 .1045 293.96 Esso Extra 787 .1245 97.98 As per agreement-Add 0c per gallon 391.94 Plus State & Federal Tax 6_0c gal. 18.00 234.00 643.94 Price Ex. Salesman Class Product Equipment Method of Delivery Slip · of Code No. Rec. Trade T.T.No. Owned Bulk at Plant THIS IS YOUR INVOICE-Please retain, T.T. or Hired no other will be rendered D.T.No. TR. Owned T.C. Tank car Barge & or Hired WH. & Pipe Line Miller No. 26 TR. Owned Dr. TR. Pat'd. No. 1,534,478 Pack. or Hired Other 126 Supreme Court of Appeals of Virginia page 165 ~ EXHIBIT No. 2-Mr. R. H. J. This check is in settlement No. 29 of the following invoices R. H. Johnson Esso Station Date Amount East Waynesboro For Down payment on Essa Waynesboro, Va., 5-2-1941 Sign. Total of invoices Pay to Less-% Discount the order Less freight of Standard Oil Co. of N. J. $25.00 Total deductions Twenty-Five 00/100 ...... Dollars Amount of check If incorrect please return no receipt necessary R. H. JOHNSON ESSO STATION To THE FIRST NATIONAL BANK Waynesboro, Va. By R.H. Johnson (Signed) WAYNESBORO, VA. 5 68-227 Insured against fraudulent alteration Pat'd-Todd Bankers Supply Endorsement: Pay to the Order of First and Merchants N at'l Bank RICHMOND, Va. May 15, 1941 STANDARD OIL CO. OF NEW JERSEY . VIRGINIA DIVISION page 166~ EXHIBIT No. 2-MR. R.H. J. This check is in settlement of the .following invoices No. 40 Date Amount R. H. Johnson Esso Station East Waynesboro Total of invoices Waynesboro, Va., 5-13-1941 Less-% Discount Less freight Pay to Total deductions the order First National Bank of Waynesboro v. R. H. Johnson et als. 127 Amount of check of Standard Oil Co. of N. J. $126.09 If incorrect please return no receipt necessary One Hundred & Twenty Six 09/100 Dollars R.H. JOHNSON ES$0 STATION To THE FIRST NATIONAL BANK Waynesboro, Va. By R. H. Johnson (Signed) WAYNESBORO, VA. 5 68-227 Insured against fraudulent alteration Pat'd-Todd Bankers Supply Endorsement : Pay to the Order of First and Merchants N at'l Bank RICHMOND, VA. May 20, 1941 STANDARD.OIL CO. OF NEW JERSEY VIRGINIA DIVISION · page 167 ~ EXHIBIT No. 3-MRS. R.H. J. STANDARD OIL COMPANY OF NEW JERSEY Location ------ Date 193-- To ------Subject Ref.------4-35c Films ...... 21 .84 6-25c Films ...... 15 .90 6-Underhood lights ...... 1.7 1.77 10.62 3-Used batteries ...... 7 5 2.25 139-lOc Spring Fix...... 8.34 22.95 Received payment by check for above amount. July 11, 1941. . (s) MRS. MARY JOHNSON. 128 Supreme Court of Appeals of Virginia page 168~ EXHIBIT-Bill of Merlin Johnson against R. H. Johnson. Return this Statement for Correction in Case of Error M R. H. Johnson To M. T. Johnson Dr. Apr. 14 1 Week Labor ...... : ...... 15.0 21 !Week Labor ...... 15.00 28 1 Week Labor ...... 15.00 May 5 1 \Veek Labor ...... 15.00 12 1 WeekLabor ...... 15.00 19 1 Week Labor ...... 15.00 26 1 Week Labor ...... 15.00 June 2 1 Week Labor ...... 15.00 9 1 \Veek Labor ...... 15.00 16 1 Week Labor ...... 15.00 23 1 Week Labor ...... ~ 15.00 30 1 Week Labor ...... 15.00 July 7 1 Week Labor ...... : ...... 15.00 11 At Noon 0 Week ...... 7.50 $202.50 6-10 By Check ...... $20.29 By Cash ...... 3.00 6-:28 By Cash ...... 5.00 June 25 5 Gas...... 1.15 $29.44 $173.06 page 169 ~ I hereby certify that the above is a true statement of the amount due me for wages from R. H. J obnson and the amount of $173.06 is due and unpaid. (s) M. T. JOHNSON. Subscribed and sworn to before me this the 19th day of Novem ber 1941. (s) J. B. YOUNT, JR. Notary Public. First ~ational Bank of Waynesboro v. R.H. Johnson et als. 129 My Commission expires 2-12-42. Endorsement: Filed in the Clerk's Office of the Circuit Court of Augusta County February 27, 1942. Teste: J.M. BLACKBURN, Dep~ Clk. page 1770~ REPORT OF MASTER COMMISSIONER MAY Commissioner's Office, February 25, 1942. Staunton, Virginia. To th.e Honorable Floridus S. Crosby, Judge of the Circuit Court of Augusta County, Virginia: The undersigned, your Commissioner in Chancery, in pursuance of the foregoing order of October 6, 1941, appointed the 5th day of November, 1941, as the time, and his office in the City of Staun ton, Virginia, as the place for the taking of the accounts by said decree· required and gave notice thereof as therein directed. See notice hereto attached. The taking of said accounts .not having been completed on the last day mentioned, the same has been continued from day to day, and from time to time, until the present, when your Commissioner now respectfully begs leave to report as follows: Your Commissioner, in arriving at his decision of the matters and questions raised by the parties hereto, and the inquiries direct ed to be stated, considered it essential to first find and report the facts as developed and determined by the evidence introduced in this cause. page 171 ~ FACTS Your Commjssioner finds the following to be the facts in this matter: One R. H. Johnson operated what is commonly known as a Filling Station ( selling at retail gasoline, oil, and the usual goods incidental thereto) jn Waynesboro, Virginia, on certain premises situated at the corner of the Jefferson Highway and Commerce Avenue in said Town, which he occupied under a lease from the Standard Oil Company of New Jersey, dated April 26, 1941 with 130 Supreme Court of Appeals of Virginia certain rights of renewal of the same as provided in Clause 2 thereof. An annual rental of $1680.00 was reserved, which was payable in equal monthly instalments of $140.00 on the first day of each month in advance. Clause 8 of the lease provides as follows: "It is agreed that if any rental shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the Lessor, without further demand or notice of any kind, to-reenter said premises, remove all persons there from, and terminate this lease." page 172 ~ Schedule "A" of the lease lists certain of equipment, which are the usual accessories of a filling station, not deemed necessary to enumerate at this time, that were turned over by the Lessor to Johnson and receipted for by him. This equip ment remained the property of the Lessor and was to be returned to it upon the expiration of the lease. Johnson commenced the operation of the station during the first week in May, 1941, and purchased from the Standard Oil Com pany of New Jersey (hereinafter called the Oil Company) certain of its products, known as "Esso Products," consisting of Gasoline, oils, lubricants, batteries, tires, tubes, et ectera. The station also carried and sold supplies of automobile accessories, candies, tobac cos, soft drinks and sundries which were purchased from other tradesmen. During the time of the operation of the station by Johnson from the first week in May to July 10, 1941, he had incurred an in debtedness to the Oil Company of $1353.93 for goods purchased for the station, which was subject to credits aggregating $247.08, leaving a balance due as of July 11, 1941 of $1106.85. A state ment of·said account as of July 1, 1941, is as follows: page 173 ~ "R. H. Johnson In Account With Standard Oil Company of New Jersey, 1941 Dr. June 19-To motor fuel ...... $ 643.94 June 30--To book matches ...... 6.25 July 1-To rent (payable in advance) adjusted as of July 7th ...... 31.61 July 3-To checks returned, Johnson, $12.00 and $9.03 21.03 July 7-To check returned, W. R. Conoly ...... 5.90 First National Bank of Waynesboro v. R.H. Johnson et als. 131 July lQ--....:.To check of R. H. Johnson, returned protested ( for motor fuel delivered July 5, 1941) ...... 643.94 July 10--To protest fees, check ...... 1.26 $1353.93 Cr. Feb. 18- ...... $14.00 May 15- ...... 25.00 June 1-May collections ...... 66.56 July 1-June collections ...... 40.06 July 10--Sales tickets ...... 16.92 July 11-Cash ...... 84.54 247.08 July 11-To balance ...... $1106.85 It should be observed that the last two credits· on the above ac count dated, respectively, July 10, 1941, of $16.92, and July 11, 1941, of $84.54, aggregating the sum of $101.46, were credited on the account after July 7, 1941, on which date Johnson left the sta tion and absconded as hereinafter reported. These two credits totalling $101.46, were paid out of receipts received from sales made in the station on July 8 and 9, 1941, on which days the agents of the Oil Company had assumed and exercised full control over the station. page 174r On the evening of July 7, 1941, R. H. Johnson went to the station and told his brother, Merlin Johnson, who was employed there, that he was leaving and bade him "Good-bye." He, R. H. Johnson, immediately left the station and has not been seen nor heard from since that night. Messrs. W. J. Hewlett and R. W. Hankins, local representatives of the Oil Company, were notified of the above occurrence, and they, along w.ith Mrs. R. H. Johnson, spent several hours that evening searching Vv aynesboro and its environs for the fugitive. Failing to find Johnson, the above representatives of the Oil Company later that night directed Merlin Johnson to open the station the next day, July 8, 1941. On the morning following, July 8, 1941, Messrs. Hewlett and Hawkins in their capacities as rep resentatives of the Oil Company, entered upon and took charge of the station, the merchandise and effects therein, in the name of and for their principal, the Standard Oil Company of New Jersey. They immediately commenced to take an inventory of all goods and merchandise on hand known as "Esso Products," which had been sold to Johnson by the Oil Company. They directed Mrs. 132 Supreme Court of Appeals of Virginia Johnson, the wife of R. H. Johnson, to remove all other effects from·the station. During the 8th and part of the 9th of July, the station was kept open for business and sales ·were continued by Merlin Johnson under the direction and employment of page 175 ~the above agents. The receipts, aggregating $101.46 were credited on the account of the Oil Company against Johnson on July 10th and 11th, 1941, as appears in the statement filed herewith by the Oil Company. The station was closed and sales ceased some time during the day of July 9, 1941. The wife, Mrs. Johnson, who spent a major portion of July 8, 9, 10, and 11 at the station, in pursuance of the directions received by her from the above agents, removed some of the goods and effects to her home in Waynesboro. Among these fixtures so removed was a pressure gun which had been sold by Simmons Parts Company of Staunton, Virginia, to R. H. Johnson. News of Johnson's departure spread rapidly throughout the com munity, and his creditors immediately began to swarm upon the station. Numerous articles of stock and fixtures which had been sold by them to Johnson an open account were removed. The Blue Ridge Grocery Company, of Waynesboro removed candies, to baccos and merchandise of the value of $19.53, as appears from an exhibit filed herewith. McClung Brothers, of Waynesboro, removed automobile accessories of the value of $46.99 as appears from an exhibit filed herewith. Simmons Parts Company, of Staunton, took possession of a grease gun of an estimated value of $400.00, which was removed to the ,home of Mrs. Johnson in Waynesboro and later sold by Simmons Parts Company to A. R. Harding, as more fully hereinafter stated. Through its agents, Messrs. Hewlett and Hawkins, page 176 ~the Oil Company completed the inventory of goods sold· by it to Johnson and immediately entered upon negotia tions for the sale of the stock of goods and equipment and the leasing of the real estate upon which the station was operated. On July 11, 1941, an agreement was reached between the agents of the Oil Company and one A. R. Harding of Waynesboro, Virginia, whereby Harding purchased the said stock of goods and equip ment at the prices extended in the inventory thereof, aggregating the sum of $ ; signed a lease for the premises ; and immediately took charge and entered upon the operation of the station on his own account. Since said agents were without au thority, it was necessary to send the lease to the Richmond office of the Oil Company for execution by an authorized officer thereof.. First National Bank of Waynesboro v. R.H. Johnson et als. 133 Therefore, the lease was not executed on that day, July 11, 1941, by the Oil Company. The creditors of R. H. Johnson began to attach on July 11, , 194L Mr. William F. Coyner, Deputy Sheriff of Augusta Coun ty, Virginia, appeared at the station on the afternoon of July 11, 1941, between the hours of three and four, and found present at the station, Mrs. Johnson, Merlin Johnson, A. R. Harding, James S. Simmons of the Simmons Parts Company, W. J. Hewlett and R. W. Hawkins. He made known to those present his business at the station, and thereupon levied the attachments in his hands . upon the property on the premises by delivering copies page 177 rof the same to the co-defendants in the attachment pro- ceedings, by viewing the property, announcing the levy and endorsing the levy on the attachments. The several attach ments h~rein and the time of the levies made in pursuance thereof will be discussed and stated later on in this report. Question has arisen as to whether the attachments were levied before or ·after the trans£ er of the property to A. R. Harding on that date, July 11, 1941. · Your Commissioner finds that A. R. Harding and his son signed a lease and A. R. Harding had assumed control over and taken over the station before the Deputy Sheriff arrived. See transcript of evidence, W. J. Hewlett, p. 60 (record page 78) and R. W. Hawkins, pp. 79, 80. (record pages 97 and 98) FINDINGS OF THE COMMISSIONER Your Commissioner is first directed to state whether R. H. John son, the principal defendant, has removed, or absconded, from the State of Virginia, or is a non-resident thereof, and his whereabouts, if known. The evidence clearly shows, and it is stipulated by counsel, that R. H. Johnson absconded on the evening of July 7, 1941. He there upon removed from the State of Virginia, and he is believed at the present time to be a non-resident of the State of Virginia, and he is · hereby reported as such. So far as the evidence taken in this matter discloses, his present whereabouts is unknown. page 178r II. Your Commissioner is next directed to state what property, tangible or intangible, of R. H. Johnson,. was in the possession or 134 Supreme Court of Appeals of Virginia under the control of the co-defendants, or any of them, at the time the principal defendant absconded, its value and the present location thereof. Strictly speaking, if "Absconded" is interpreted to mean the· time that R. H. Johnson told his brother "Good-bye" and left the station on the evening of July 7, 1941, his employee and brother, Merlin Johnson, was in possession of the property composing the stock of. goods and equipment which was owned by R. H. Johnson. However, ~t a later hour that evening, Messrs. Hewlett and Haw kins, agents of the Oil Company, came to the station and directed Merlin Johnson to open the same the following morning. On the next morning, July 8, 1941, the said Hewlett and Hawkins appear ed at the station and took over the same for and in the name of the Oil Company, and continued to exercise dominion over it un til it was disposed of to A. R. Harding on July 11, 1941. The Oil Company was in complete possession of the property in the station that belonging to R. H. Johnson; exercised dominion thereover; immediately began to take an inventory of the stock and effects it had sold to Johnson, and continued to operate the business on that day and a portion of the following day. The property of R. H. Johnson in the station and on page 179 ~the premises at that time, composed of equipment and stock of goods and merchandise on hand consisting of gasoline, oil lubricants, candies, tobaccos, tires, tubes, batteries, accessories, et cetera, in possession of the Oil Company on the morning of July 8, 1941, was of the value ot $1774.12. The items making up this sum appear in the inventory made by the Oil Com pany; the statements filed herein by McClung Brothers and Blue Ridge Grocery Company showing the goods removed by them and returned to their plants; and the grease gun removed by Simmons Parts Company. The value thereof is computed as follows: Inventory of goods sold to A. R. Harding ...... $1206.14 Station sales ...... 101.46 Goods removed by McClung Brothers ...... 46.99 Goods removed by Blue Ridge Grocery Company . . 19.53 Goods removed by Simmons Parts Company ...... 400.00 Since the goods sold by the Oil Company to A. R. Harding were immediately placed in his stock, no doubt they have been disposed of in the due course of the operation of the business by him. The same is true of McClung Brothers and the Blue Ridge Grocery Company, since the goods removed by them were· mingled with their other stock. The grease gun sold by Simmons Parts Com- First National Bank of Waynesboro v. R.H. Johnson et als. 135 pany to A. R. Harding was in the latter's possession on July 11, 1941. The evidence is not clear and does not disclose whether the same is in the possession of A. R. Harding at this time. There were other articles of personal property, consist ing of household furniture, which were located on the page 180~premises in the East ·ward of Waynesboro, which John- son rented from V\T m. F. Landes. This personal prop erty was in the possession of Johnson's wife, Mary C. Johnson. The evidence does not show the amount, value, and location there of. However, the same has been attached by creditors and the specific articles will appear upon an examination of the officer's return made on the back of the attachment process. III. The Commissioner is next directed to state the rights, if any, of the Standard Oil Company of New Jersey. The evidence in this matter establishes the fact that Standard Oil Company of New Jersey took possession of and converted R. H. Johnson's goods on the filling station premises in Waynesboro, Virginia, on the morning of Tuesday, July 8, 1941. It took an inventory of the goods known as Esso Products, which it had sold to Johnson and on July 11th sold and delivered the goods to one A. R. Harding and received payment therefor. The goods · had been purchased by A. R. Harding and settlement made there for by him before the attachments in this matter were served and executed. The question to be determined is what rights the Stand ard Oil Company had in the property of R. H. Johnson at that time and what rights in the property were acquired by A. R. Hard ing in his purchase of the same from the Oil· Company, and how the attachment creditors are affected thereby. It page 181 ~is conceded that there was a conversion of the property by the Oil Company, who was the creditor of R.H. John son on open account to the extent of $1106.85 for goods sold and delivered. The claim of the Oil Company is, that it may offset the debt owing to it by Johnson against the damages owing by it. to John son on account of the conversion of his property. This contention of the Oil Company is hotly contested by attachment creditors. It is a recognized principle of the law that a debtor's property is free from any specific claim to it or dominion over it by his cred itors, until the creditor.: has resorted to the usual remedies for en- 136 Supreme Court of Appeals of Virginia forcement of his claim provided by law, such as obtaining a judg ment and levying an execution thereon, or by using some other writ recognized by law. The creditor has no title to the debtor's prop erty, except to the extent of liens, which have been perfected in compliance with the law. He is required to resort to the Court for the collection and enforcement of his debt. Any other method, such as seizure or otherwise beyond the forms provided by law, constitutes a trespass for which the creditor is liable to the debtor. It is not deemed necessary to cite authorities on this point, but the relations of debtor and creditor are fully discussed by Dr. Glenn in his work on Creditor's Rights and Remedies. The Oil Company relies solely on its conversion of page 182 Uohnson's property, and its right to offset his indebted- ness to it against the damages owing to him for the con version. The doctrine of waiving the tort and suing in assumpsit is involved, and the question arises as to whether that doctrine would apply in this particular instance. The company relies upon the case of Tidewater Quatrry Company v. Scott, 105 Va., 160, wherein the principal question involved was, whether the value of goods which had been converted could be set-off against a liquid ated demand. In that case Scott instituted an action of assumpsit against the quarry company on a claim due partly by note and partly on open account. The defendant quarry company filed its itemized statement of off-sets, the items of which covered quanti ties of stone belonging to it which Scott had converted. Scott objected to the claim of the quarry company on the ground that it tended to establish a claim for. damages that could not be set off against his debt. The Court invoked the doctrine of waiving the tort and suing in assumpsit, and held that the quarry company had the right to waive the tort and bring its action of indebitatus as sumpsit for the value of the goods converted upon an implied con tract of the tort feasor to pay for the same. The Court further held in that case that the off-set of the quarry company was not unliquidated, but the amount thereof was readily ascertainable, and therefore could be set off as a debt against a debt. page 183While the above doctrine is well established in Virginia and prevents circuity of action; your Commissioner can not hold that it applies in the instant case. In Burks Pleading and Practice, 3rd Ed., Section 92, page 174 the rule of waiving the tort and suing in assumpsit is thus stated : "Wherever a person commits a wrong against the estate of. an- First National Bank of Waynesboro v. R.H. Johnson et als. 137 other, with the intention of benefiting his own estate, the law will, at the election of the pa,rty injured, imply a contract on the part of the wrongdoer to pay the party injured the full value of all bene fits resulting to such wrongdoer; and in such case, the injured party may elect to sue upon the implied contract------ The legal presumption of the implied contract being conclusive, the defendant will not be permitted to set up his tort in order to defeat the implied promise." In the next paragraph it is stated: "The injured party may bring indebitatus assumpsit for the value of the property on the wrongdoer's implied contract to pay for the property converted and appropriated by him." The election to waive the tort is solely within the power of the injured party, and it rests solely with him to pursue this benign course of action. For the conversion the injured party has several remedies. He may bring trespass, trover, detinue or assumpsit at his election as stated by Judge Moncure in Sangster v. Comnwnwealth, 17 Gratt. 134 and quoted with approval in Booker v. Donohue, 95 Va. 359. Therefore, the election to waive the tore for the conversion being solely in the person injured, who is Johnson in this case, page 184 ~the Oil Company would have no right to waive its own tort and avail itself of the rule in question to the injury of Johnson,. and thereby obtain preference over attachment and lien creditors. For the above reasons your Commissioners cannot hold that the case of Tide-t.ttater Quarry Company v. Scott, supra its controlling. The remedy of Set-Off is entirely a creature of statute, and was unknown to the common law. It is a counter demand of a liquid ated sum growing out of a transaction separate to the plaintiff's demand. It is allowed in Virginia by virtue of Section 6144 of the Code. The Courts hold with uniformity that the Set-Off must be a debt against a debt and must be a liquidated demand. A tort may not be set off against a debt. The contrary is also true where the action is for tort no set-off can be allowed, except under a recent statute, V. C. Sect. 6097 a, which provides that in an action for tort the defendant may file a cross-claim averring that the plaintiff is liable for a tort to the defendant for damages arising out of the same transaction. Burks Pleading and Practice, 3rd., Ed., page 138 Supreme Court of Appeals of Virginia 396, section 223 and 224. Your Commissioner considers that in the instant case the Oil Company is endeavoring to avail itself of the tort which it has committed, waive the same on behalf on John son, the injured party, and then off-set its debt against the dam- ages that Johnson had sustained by the wrong£ ul con page 185 ~version of his property. Your Commissioner can find, nor has there been submitted to him, authority for such an unusual course of action, and it is believed to be contrary to sound public policy and in violation of the rights of attachment creditors. In considering the rights of attachment creditors, there arises the question of the time the title passes upon conversion of property of another. This subject is discussed in Burks Pleading and Practice, 3rd. Ed., section 164. It is there stated that while the great weight of authority is to the effect that title does not pass simply by the judgment but only upon satisfaction of the judgment. While there is some conflict of authority on the subject, the question has now been settled by statute in Virginia. Section 6087 of the Code provides as follows : "A judgment for the plaintiff in an action of trover shall not operate to transfer the title to the property converted unless and until such judgment has been satisfied." It would appear, therefore, that in the instant case the title to the property converted by the Oil Company did not pass by sale and transfer thereof to A. R. Harding and at that time was subject to attachment by creditors of Johnson. As to the rights of the owner of the property converted against purchasers of the same, see 26 R. C. L. page 1118, Section 29, where the rule is thus stated : ''Any person who purcha~es the personal property of anothet from one other than the owner or someone authorized to sell the same is liable in trover for the conversion of the property, at the suit of the true owner, regardless of the fact page 186 ~that such purchaser may have acted in good faith." For discussion of two conversionary acts, see Restatement Of The Law-Torts, page 587, section 229-e. The Oil Company could trans£ er to Har_ding only such title as it had, in the goods of Johnson, which was not the right of prop- First National Bank of Waynesboro v. R.H. Johnson et als. 139 erty therein, and Harding thereby became a converter. R. C. L. page 1139, section 50. The above findings apply with equal force to Simmons Parts Co., McClung Bros. and Blue Ridge Grocery Co. for the goods they wrongfully reclaimed and converted. In his memorandum of authorities, couns~l for the Oil Com~ pany likens this to the familiar case of a bank's right to apply debtor's funds in its possession to the payment of its debts. Bank~ deal in money, which has no ear marks; it is wholly negotiable. The customer deposits his money in the bank; it is no longer his, but belongs to the bank, which is then his debtor for the amount deposited. From the time of the deposit the relation of debtor and creditor exists. It is generaly held that banks may acquire set-offs against the deposits of its creditor and may deduct them from his account; In many cases the right is spoken of as the lien of the bank on its creditor's deposits, but it is more correctly the right of set-off. The right results only from the relation of the parties as debtor and creditor. Reserve Ba.nk v. State Bank, 150 Va. 423.' The Rule is otherwise, and the bank has no lien upon page 187 ~non-negotiable property or upon goods merely in the possession of the bank, and not intrusted to it to be turn ed into money credit. Morse on Banks and Banking. 6th Ed., Vol. 1, Section 336. IV. The Commissioner is next directed to state the liens, if any, binding said property, the amounts thereof, and the order of prior ity of said liens. The liens binding the above property· consist of a lien for rent, two conditional sales contracts ai1d several attachments which have been levied on the same. Your Commissioner considers that it would unduly encumber this report to state in detail the proper ties covered by the several liens, particularly by the attachments. To do so would unnecessarily lengthen the report and increase the expense thereof. It is believed that, if the findings of your Com missioner in this report are sustained, it will be necessary to have another reference to state the exact amounts of the liens at that time, as well as the specific articles of i)ersonal property covered by the same. Therefore your Commissioner will state under this branch of his report the names of the persons who hold liens; the 140 Supreme Court of Appeals of Virginia nature thereof, the amounts thereof as they exist at this time, and .the order of their priority, which is as follows : page 188~ (a) AUGUSTA FURNITURE COMPANY, INC. v. RH. JOHNSON This lien is a conditional sales contract dated April 12, 1938, which was docketed in the Clerk's Office of the Circuit Court of Augusta County, Virginia at 11 :00 A. M. on April 16, 1938 for the sum of $234.25 payable $20.00 per month covering one No. 500 Bedroom Suit; one Ace Spring, 4x6; and one Beauty Mattress. The balance due on this lien at the present time is $50.00, plus 15% attorney's fee, aggregating the sum of $57.50. Your Commissioner reports this to be a paramount lien upon the property covered in this aforesaid contract. (b) AUqUSTA FURNITURE COMPANY, v. MRS. R. H. JOHNSON This lien is a conditional sales contract dated August 9, 1940, duly docketed in the aforesaid Clerk's Office at 4 :00 P. M. on Au gust 12, 1940, for the sum of $358.05, payable in installments of $27 .50 per month, covering the following personal property : 1 9x 12 Axminster rug; 1 kitchen table; 3 beds 4x6; 1 bed 3x3 ; 3 springs 4x6; 1 spring 3x3 ; 3 mattresses 4x6; 1 mat page 189 ~tress 3x3 ; 7 pillows; 4 rugs 24x45; 2 vanity dressers; 3 dressers; 4 rockers ; 1 chair; and 1 vanity bench. There is a balance due on this lien of $128.00, plus 15% attorney's fee of $19.20, aggregating the sum of $147.20. This constitutes a paramount lien upon the ·articles of personal property set out in the above contract. First National Bank of Waynesboro v. R.H. Johnson et als. 141 (c) WM. F. tANDES. Wm. F. Landes filed his answer in the above styled causes at the first August Rules, 1941, claiming his lien for rent reserved and due and unpaid by R. H. Johnson for the premises occupied by R. H. Johnson on Jefferson Highway in the East Ward of Waynes boro, Virginia, for the sum of $125.00, covering May, 1941 rent of $25.00 and June and July, 1941, rent of $100.00. There has been no distress warrant issued and the lien while inchoate, constitutes a paramount lien for rent due not exceeding six months on the household furniture and property of the said R. H. Johnson located on the above premises, except the. several arti cles covered by the conditional sales contract set out in (a) above, and except such articles as may be exempt under the poor deb tor's law. The rent claim constitutes a second lien 1:,1pon the arti cles contained in the conditional sales contract executed by R. H. Johnson set out in (a) above, but is not a lien on the property of Mrs. R.H. Johnson. page 190~ (d) . McCLUNG BROS., a partnership composed of F. W. and B. F. McClung, v. R. H. JOHNSON, ET ALS. ..,,,.fl'ifi£&;. ___y. This is a claim of McClung Bros. against R. H. Johnson for the sum of $208.00 with interest thereon from August 6, 194 and 10% attorney's fee. An attachment was sued out in the Trial Justice Court of Augusta County on July 11, 1941, for the afore said amount, which was served on Mary C. Johnson, co-defendant, on August 11, 1941. There was an order of publication as to R. H. Johnson. The attachment was levied by Wm. F. Coiner, Jr., . Deputy Sheriff of Augusta County, Virginia at 2 :05 P. M. on July 1, 1941 upon the effects and property of R. H. Johnson as fully appears upon the return made by the Deputy Sheriff upon the back thereof. Judgment was entered in favor of the plaintiffs in the said Trial Justice Court on September 5, 1941 for the sum of 142 Supreme Court of Appeals of Virginia $208.00 with interest from August 6, 1941, 10% attorney's fee and $7.50 Court costs, and an order was entered by the Trial Jus tice Court directing the Sheriff to proceed to sell the property levied ori, and an execution was issued thereon. page 191 ~ (e) THE FIRST NATIONAL BANK OF WAYNESBORO, VIRGINIA, . v. R. H. JOHNSON, principal defendant, MARY C. JOHNSON, principal and co-defendant, STANDARD OIL COMPANY OF NEW JERSEY, co-defendant, A. R. HARDING, co defendant, F. W. and B. F. McCLUNG, trading as Mc Clung Bros., co-defendant, SIMMONS PARTS COM PANY, co-defendant, WM. F. LANDES, lienor, and AU GUSTA FURNITURE COMPANY, a corporation lienor. This is a claim of The First National Bank of Waynesboro, Virginia, for the balance due on a note made by R. H. Johnson and endorsed by Mary C. Johnson for the sum of $704.16 with interest thereon from July 5, 1941 and 10% attorney's fee. The note is subject to a further credit of $2.95 which was paid on Sep tember 10, 1941 by Mrs. Mary C. Johnson after the institution of the proceeding. The bill was filed in this cause on July 11, 1941 and attachments issued out of the Clerk's Office of the Circuit Court of Augusta County, Virginia, on that day against the prin cipal defendants, the above co-defe_ndants, and the above lienors. The Attachment was levied on July 1, 1941 by the Deputy Sher iff of Augusta County, Virginia, delivering copies of the same to Mary C. Johnson, A. R. Harding, F. W. and B. F. McClung, trad ing as McClung Bros., Jas. S. Simmons, sole owner of Simmons Parts Company, W. J. Hewlett, Standard Oil Company represen- tative, and Augusta Furniture Company, and on July page 192 p2, 1941 by delivering a copy of the same to Wm. F. Landes. The copy of the attachment was served on the Secretary of the Commonwealth of Virginia, Statutory Agent for Standard Oil Company of New Jersey on July 16, 1941. There was an order of publication as to R. H. Johnson on July 16, 1941. Wm. F. Coiner, Jr., Deputy Sheriff of Augusta County, Virginia First National Bank of Waynesboro v. R.H. Johnson et als. 143 also levied the attachment upon certain articles of personal prop erty belonging to R. H. Johnson and Mary C. Johnson, found at their home on Jefferson Highway in the East Ward of vVaynes boro, Virginia and also upon certain property of R H. Johnson consisting of fixtures and stock of goods, composed of gas, oil, tires, tubes, batteries, etc., located on the filling station premises of R. H. Johnson in Waynesboro, Virginia at 4 :30 P. M. on July 11, 1941. and on a lot of automobile accessories of R. H. Johnson in the possession of McClung Bros. at the same time on the same day. The aforesaid articles and property levied on will more fully ap pear from the list of the same attached to the return made by the said officer. It appears, therefore, that this claim constitutes a lien, next in dignity, to the lien of McClung Bros. upon the property of R. H. J ohnsoi:i ,levied on under the McClung attachment, ( d) supra. It is a lien second in dignity to the lien of Augusta Furniture on the property of Mrs. Mary C. Johnson set out in (b), supra. The sev eral articles of personal property upon which this claim is a lien in its order of priority will fully appear from the return of the officer in the said attachments. The correct amount of page 193 ~the claim at this time is $681.21 with interest thereon from July 5, 1941 and 10% attorney's fee. (f) WAYNESBORO SMALL LOAN CORPORATION, v. R. H. JOHNSON, principal defendant and MARY C. JOHN SON, co-defendant This is a claim of the Waynesboro Small Loan Corporation against R. H. Johnson for the sum of $244.41 with interest there on from July 23, 1941 and 10% attorney's fee. An attachment was issued by the Trial Justice Court of Augusta County on July 12, 1941 for the amount aforesaid; a copy of the same was served on Mary C. Johnson, co-defendant, on August 11, 1941. There was an order of publication as to R. H. Johnson. The attachment was levied by Wm. F. Coiner, Jr., Deputy Sheriff of Augusta County, Virginia at 9 :00 A. M. on July 12, 1941 upon the effects and property of R. H. Johnson as fully appears upon the return 144 Supreme Court of Appeals of Virginia made by the Deputy Sheri ff upon the back thereof. Judgmerit was entered in favor of the plaintiff above proceeding in the said Trial Justice Court on September 5, 1941 for the sum of $244.41 with interest from July 23, 1941, 10% attorney's fee and $7.50 Court costs, and an order was entered by the Trial Justice Court direct ing the Sheriff to proceed to sell the property levied on, and execu tion was issued thereon. page 194 ~ (g) S. H. HALL, trading as Blue Ridge Grocery Company, v. R. H. JOHNSON, principal defendant, and MARY C. JOH SON and THE STANDARD OIL COMPANY OF NEW JERSEY, co-defendants. Bill of complaint was filed in the Circuit Court of Augusta Coun ty, Virginia, on July 15, 1941 by this complainant asserting a debt against R. H. Johnson of $105.22 with interest thereon from June 1, 1941 due on open account for goods sold and delivered. An attachment was issued out of said Court on that day, and served by Wm. F. Coiner, Jr., Deputy Sheriff of Augusta County, Vir ginia, by delivering a copy of the same to Mary C. Johnson; A copy of the attachment was -served on the Secretary of° the Com monwealth of Virginia, Statutory Agent for Standard Oil Com pany of New Jersey on July 16, 1941. There was an order of publication as to R. H. Johnson. The Deputy Sheriff also execut ed the atachment by levying on certain household effects of R. H. Johnson and Mary C. Johnson at her home on Jefferson Highway in the East Ward of Waynesboro, "Virginia, and by levying the same upon certain merchandise and other property located at the filling station hereinbefore mentioned, both of which levies were made at 11 :30 A. M. on July 15, 1941. A complete list of the above properties and goods levied on will appear from page 1.95 ~the list filed with the return made by the Deputy Sheriff. The foregoing constitute the liens binding the prop erties of R. H. Johnson and 1VIary C. Johnson and the order of priority of the same. First National Bank of Waynesboro v. R.H. Johnson et als. 145 v. The Commissioner is next directed to state any other matters deemed pertinent by the Master, or which may be required of him to be stated by any party in interest. Some question has been raised, but not actively pressed, as to the validity of the foregoing attachments or some of them, on. the grou'nds that the same were not properly levied. The rule as to how levy of attachment is made is clearly stated in Burks .Pleading and Practice, 3rd. Ed., Section 358, page 668. In certain instances, when property is in the possession of the principal defendant, whether actively or constructive, it may be levied on as at common law or by delivering a copy of the attachment to him if bond has not been given. "As at common law" means that the attachment may be levied as an execution would be levied which is by having the property in the view and power of the offi<;er, announcing the levy and endorsing the levy on the attachment. In other instances where tangible personal property is in the possession of any de fendant other than the principal defendant, it may be levied by delivering a copy of the attachment to the person having posses sion of such property belonging to him. See Va. Code, section 6390. page 196 ~ Section 6391 of the Code provides as follows: "The Officer levying the attachment shall show in his return the timt, date and manner of the service, or execution thereof, on each person and parcel of pr9perty, and also give a list and descrip tion of the property, if any, taken under the attachment." It is believed that the requirements of the above sections of the Code have been complied with. Your Commissioner returns herewith tl)e evidence taken in this manner, the exhibits filed with him and all papers upon which this report is based. Respectfully submitted, J. H. MAY, Commissioner in Chancery. Cost of this report : Notice ...... 5.75 Clerk Hire ...... 12.00 Depositions ...... 67.00 146 Supreme Court of Appeals of Virginia pd by the First Natl. Bank of Waynesboro, Va. Com'r. Fee. I hereby certify that I have this day mailed written notice of the filing of this report to counsel of record for all parties who have appeared in these causes. FebrJiary 27, 1942.· J. H. MAY, Commissioner in Chancery. Endorsement: Filed in the Clerk's Office of the Circuit Court of Augusta County, Feby. 27, 1942. Teste.: J. M. BLACKBURN, Rep.·-..,. Clk. page 197~ EXCEPTIONS TO REPORT QF MASTER COM MISSIONER OF J. H. MAY OF STANDARD OIL _COMPANY OF NEW JERSEY The Standard Oil Company of New Jersey, co-defendant in each of the above entitled attachments, excepts to the report of Master Commissioner J. H. May, filed in the office of the Clerk of this court on February 28, 1942: in the following particulars: First: (a) To the Master Commissioner's omission to state from the evidence that the goods of R. H. Johnson, which came into this co-defendant's possession and which it converted, con sisted of 3,092 gallons of motor fuel, 314-3.:.4 gallons of motor oils and lubricants, and certain automobile accessories and tires, and that all of this property was manufactured by or products of this co-defendant, of an established and commonly known market value, which this co-defendant theretofore had furnished to the said R. H. Johnson; ( b) That the indebtedness of R. H. Johnson to this co-def end ant, which in its answer it asked to set off, was owing by said Johnson, with the exception of $31.61 for rent $6.25 for book matches and $1.25 for protest fees, on account of the purchase price of said motor fuel; ( c) To the Master Commissioner's omission to find that R. H. Johnson was insolvent. Second: To the Master Commissioner's finding t~at the co-defendant, A. R. Harding, arid not this exceptant, page 198 ~converted the goods which formerly were Johnson's, whereas the uncontradicted evidence being that this ex pectant, in possession of said goods which were upon its land, took First National Bank of Waynesboro v. R.H. Johnson et als. 147 the same, duly inventoried them and carried them into and as a part of its general stock of such goods, and thereafter and before any levy of attachments sold the same to the co-defendant A. R. Hard ing at their general market value and received payment therefor. Third: To the Master Commissioner's finding that the sup- , posed levy of the atachments affected any specific goods which theretofore had been converted by the exceptant and had been sold by it to said Harding for a valuable consideration then paid by said Harding. Fourth: To the Master Commissioner's refusal to allow this exceptant to set off R. H. Johnson's indebtedness of said exceptant to Johnson for his goods converted by exceptant, upon the ground that the election to waive exceptant's tort and to sue exceptant upon its implied contract to pay for said goods was solely R. H. Johnson's. . Fifth: To the Master Commissioner's disallowance of this ex ceptant's said set-off against its liability to said R. H. Johnson, and to his finding that this exceptant shall pay to the attachment cred itors, in the order of priority of their attachments, any page 199 ~part of its said indebtedness to R. H. Johnson other than the sum of $99.29 in this exceptant's hands belonging to said R. H. Johnson after proper credit of said set-off. Six·th: It appears from the evidence and the Commissioner's finding that at the time the attachments were served upon this ex ceptant, R. H. Johnson had absconded and was a non-resident; that this exceptant was indebted to said Johnson in the sum of $1,206.14, an indebtedness completely liquidated and ascertained; that this exceptant did not have in its hands in specie any goods or chattels belonging to said Johnson ; and that said Johnson was indebted to the exceptant at the times respectively when said John son absconded and when said attachments were issued in the sum of $1,106.85. The exceptant was clearly entitled in equity even if not at law to set off said indebtedness against anything it might owe Johnson, and the Master Commissioner erred, therefore, in refus ing to permit this exceptant to set off its clf1,im as against the at tachment creditors, and by his finding will· permit said attatchme!}t creditors to recover against this exceptant the sum of $1,106.85, which in any event the said Johnson could not have recovered. THE STANDARD OIL COMPANY OF NEW JERSEY, By Counsel. J.M. PERRY, Counsel. 148 Supreme Court of Appeals of Virginia page 200~Endorsement: Filed in open Court by leave of Court, April 2, 1942. Teste: ]. M. BLACKBURN, Dep. Clk. And at another day to-wit: At a Circuit Court held for Augusta County, Virginia, on the 20th day of April, 1942. DECREE OF RECOMMITTAL AS TO SIMMONS PARTS COMPANY This cause came on this day to be again and further heard upon the papers formerly read, upon the motion of J as. S. Simmons, Jr., trading as Simmons Parts Company, by counsel, to defer tak ing action upon the report of Master Commissioner, J. Harry May, filed in this cause on February 27th, 1942, and was argued by coun sel. Upon consideration whereof, it appearing to the court proper so to do, is adjudged, ordered and decreed that this cause be, and the same is hereby, recommitted to a master commissioner of this court, who is hereby instructed to take such evidence as bears upon the rights and liabilities of Simmons Parts Company in this cause, the taking of which evidence the master commissioner shall com plete within 10 days and file his findings herein on the 11th day of May, 1942, which findings shall be considered along with the said Master Commissioner's report of February 27th, 1942. page 201 ~ EXCEPTIONS OF SIMMONS PARTS COM- PANY TO REPORT OF MASTER COM . MISSIONER J. HARRY MAY. 1. Simmons Parts Company excepts to the report of Master Commissioner J. Harry May filed in the above causes on February 27th, 1942, upon the following grounds: a. . The Commissioner has found on page - of his report that a grease gun was removed from the filling station of R. H. John son by Simmons Parts Company. b. And that said grease gun was of the value of $400.00. The evidence does not justify either of these findings. The evidence shows conclusively that Simmons Parts Company received the grease gun from Mrs. R. H. Johnson, who, the evidence shows, considered herself as having a vital interest in the filling station, First National Bank of Waynesboro v. R.H. Johnson et als. 149 and who had the grease gun at her home, far removed from the filling station premises, and that she there delivered the grease gun to Simmons Parts Company of her own free will and accord. The only evidence as to the value of the gun was that its value was "around $400.00." · 2. The Commissioner has found on page - of his report that Harding became a converter of the property sold to him by Sim mons Parts Company because, he says, the goods were 'wrongfully reclaimed and converted." The property sold to Harding by Sim mons Parts Company was not converted, but was legally, peacefully and properly acquired; the evidence conclusively shows page 202 ~this. When Mrs. R. H. Johnson acquired the property, it is not entirely clear from the evidence; but she had acquired it and had it in her exclusive, peaceful possession and was exercising complete control and ownership thereof when she volun tarily turned it over to Simmons Parts Company. The Company, therefore, became the lawful owner of said property, it satisfied all the prerequisities of lawful ownership of the property and ex.:. ercised all the attributes of ownership, including those of trans porting it to its place of business in Staunton, reconditioning it, putting it in stock, and selling and delivering it to Harding. Hard ing, therefore, was a bona fide purchaser of and acquired a good title to the property. SIMMONS PARTS COMPANY. Endorsement: Filed in the Clerk's Office of the Circuit Court of Augusta County, April 29, 1942. Teste: J. M. BLACKBURN, Dep. Clk. FURTHER EXCEPTIONS OF STANDARD OIL COMPANY OF NEW JERSEY TO REPORT OF MASTER COMMISSIONER J. Hf\RRY MAY. The Standard Oil Company of New Jersey, co-defendant in each of the above entitled attachments, without waiving any of its ex ceptions heretofore filed to the report of Master Commissioner J. H. May, which report was filed in the office of the Clerk of this Court on February 28, 1942, filed this further exception to said report: page 203 ~ Eighth: The claim of R. H. Johnson against this co defendant is subject to garnishment proceedings only 150 · Supreme Court of Appeals of Virginia . on the basis that such is for a liquidated sum, recoverable by the said Johnson upon this co-defendant's implied promise to pay, and therefore such claim is subject to this co-defendant's said set-off in these proceedings. THE STANDARD OIL COMPANY OF NEW JERSEY By J.M. PERRY, Counsel. J.M. PERRY Counsel. Endorsement: Filed in the Clerk's Office of the Circuit Court of Augusta County, May 7, 1942. Teste: J.M. BLACKBURN, Dep. Clk. page 204 ~ The depositions of James S. Simmons, Jr., and others, taken by consent of all parties, in the office of Curry Car ter, Attorney, Staunton, Virginia, between the hours of 10 :00 A. M. and Noon, Monday, April 27, 1942, before Herbert J. Taylor, Commissioner in Chancery of the Circuit Court of Augusta Coun ty, by authority of decree of April 20, 1942, to be read as evidence on behalf of Simmons Parts Company in the above styled suits; PRESENT: Herbert J. Taylor, Commissioner in Chancery; Guy H. Branaman, Attorney for the First National Bank of Waynesboro; F. B. Edmunds, Attorney for petitioning creditor; Curry Carter, Attorney for Simmons Parts Company; Mr. Branaman: As counsel for the First National Bank of Way nesboro objection is made to this hearing, because notice was given to all persons concerned in this case of the time and place set by Master Commissioner J. H. May, to whom this cause was referred for a report. The Master too~ the evidence, prepared his report and filed the same in the Clerk's Office of the Circuit Court of Au gusta County on the 27th day of February, 1942, at which time the Master Commissioner gave notice to all parties, plaintiffs and defendants, in the cause, or else to their attorneys of rec page 205 ~ord; and following the filing of the said report the cause was set down to be argued on the exceptions filed by the Standard Oil Company, the hearing to be on the 23rd day of April, 1942. Thereupon, on the 20th day of April, 1942, in the Clerk's Office of the Circuit Court, a motion was made to recommit or else bring in a special report for the Simmons Parts Company, notwith- First National Bank of Waynesboro v. R.H. Johnson et als. 151 standing the fact that the case had been made out before the Mas ter, the report made and filed without exceptions being taken to the report by the Simmons Parts Company. Therefore, the order of reference was improvidently awarded, and therefore, as counsel for the Bank~ objection is made to the hearing here today. Mr. Carter: To which counsel for the Simmons Parts Company replies: This suit was brought on July 11, 1941, and the Simmons Parts Company was made a party defendant. The bill in another suit-that of S. H. Hall, trading as Blue Ridge Grocery Company, v. R. H. Johnson and others-was brought by the same attorney on July 15, 1942. Simmons Parts Company filed its answer on Au gust 30, 1941, as is shown by the Clerk's notation thereon. It ap pears from the papers that these two suits are being heard together without the knowledge of the attorney for the- Simmons Parts Com pany until after the filing of the report of Master Commissioner May. On October 6, 1941, there was a decree of refer page 206 ~ence entered in the combined causes, it appears, which was obviously handed to the Court by the attorney for the plaintiff in the first above suit without submitting the same to the attorney for the Simmons Parts Company, so far as notation on the. decree shows, withouL submitting it to any other attorneys, except the attorney for the Standard Oil Company. The decree provided the Master Commissioner should proceed with the execu tion thereof upon publication of the time and placei of his primary sitting once a week for two consecutive weeks in the Waynesboro News Virginian, a newspaper published in the town of Waynes boro, Virginia, and when so published the notice should be equival ent to personal service upon all parties in the causes. So far as the attorney for the Simmons Parts Company is informed this news paper has a limited circulation in the City of Staunton and is not the paper customarily used for such publication. The first that the attorney for the Simmons Parts Company learned that' there was such a reference was through a letter of October 23, 1941, address ed to Messrs. J. M. Perry, Curry Carter, F. E. Edmunds and Humes J. Franklin, to which was attached a clipping from the Way nesboro paper carrying the Commissioner's publication. This letter stated that J. H. May had set November 5, 1941, at his office in Staunton, Virginia, begining at 10 :00 o'clock "to take up the mat- ters involved, as you will see from the notice hereto at page 247 ~tach~d; therefore the complainants will be on hand promptly. at 10 :00 A. M. to take evidence before the Commissioner." It appears that a copy of that letter was mailed 152 Supreme Court of Appeals of Virginia J anies S. Simnwns, Jr. to J. H. May, Master Commissioner. Attorney for the Simmons Parts Company paid no particular attention to that letter and it appears that there was no appearance before the Commissioner on November 5, 1941, but that the first appearance before him was on November 10, 1941, and that evi dence was_ taken on that date, November 10th, and ,on November 14 and 19, 1941. The next that the attorney for the Simmons Parts Company heard of the case was a letter from J. H .. May, Master Commissioner in Chancery, stating that he had on February 27, 1942, filed his report. Attorney for the Simmons Parts Company made several casual inquiries about the papers, in order to locate the report, but did. not vigorously attempt to find the papers until two or three days before the entrance of the decree of April 20, 1942. He finally located the papers in the law offices of Mr. Branaman or Mr. Edmunds and offiered the decree complained of promptly thereafter. James S. Simmons, Jr., a witness of lawful age, called on behalf of the Simmons Parts Company, after being duly sworn, testified as foflows: · DIRECT EXAMINATION. By Mr. Carter: Q. Please state your age and occupation? pa~e 208 t A. I am 47 and owner of. the Simmons Parts Com pany. Q. Did you sometime during the year 1941 sell to R. H. John- son a , Lincoln grease gun ? A. I did. Q. Do you recall when you sold the gun to him? A. Approximately January 18, 1941. The sale was consum mated at that time. However, he was not to be billed with it until the station was completed but to store it there until his station was completed. Q. Do you recall when his station was completed? A. No, sir. · Q. Do you recall what the price of the gun was?. A. Approximately $412.00. First National Bank of Waynesboro v. R.H. Johnson et als. 153 James S. Si11111w11s, Jr. Q. Of that sale price, how much did Mr. Johnson pay you? A. $70.30. Q. Did he give you a note or any other evidence of debt for the balance ? · A. Yes, sir. Q. How much was due on that on the 7th day of July, 1941? A. $342.- Q. After you sold that gun to Mr. Johnson, did you ever see it again until after he left here? A. No, sir. Q. Do you recall having been to his station at any time between the time that he bought the gun and the time that he le£ t? A. No; sir, I do not. page 209 ~ Q. It appears from evidence that has already been taken in this case that Mr. Johnson left Waynesboro the 6th or 7th of July, 1941; Did you ever hear that he had left Way nesboro? A. I und_erstood he left on July 7, 1941. Q. After you learned that ~e had left Waynesboro, did you go to his place. of business? A. Yes, sir, on July 8, 1941. That was the day I heard he left; ~ did not know he had gone until July 8th, and I was told he had le£ t the day before. Q. When you got to the station on July 8th, did you find there the grease gun that he had bought from you ? A. No, sir, it was not there. Q. Did you find who had· removed it? A. Yes, sir. Q. Who had removed it? A. Mrs. Johnson. Q. Do you know when she removed it? A. I do not. Q. Have you learned from anybody when she removed it? A. No, sir. Q. Did you see Mrs. Johnson? A. That afternoon. . .Q. \tVhere? A. At the station. page 210 ~ Q. Do I understand she told you that she had remov ed it? 154 Supreme Court o~ Appeals of Virginia J a.mes S. Simmons, .Jr. A. Yes, sir. Q. Did she tell you where she had removed it to? A. To her back porch, at her home. Q. Up to that time had you had any conversation whatever with Mrs. Johnson? A. I never saw here before in my life. Q. Did Mrs. Johnson remove the grease gun, or any other prop- erty from the station, with your su·ggestion or knowledge? A. No, sir, absolutely not. Q. Do you know she removed anything from the station? A. I do not. Q. After you learned that Mrs. Johnson had possession of the grease gun and she had told you where it was, did you have any conversation with her? A.. I did. Q. What did you learn through that conversation? A. She told me the grease gun was on her back porch, and I asked her if I could get the grease gun and she said, "Yes," and I asked her to give me a note or something to take to the house. She said there was no one there, but I could get it off. the back porch. Q. How far from where you were talking to Mrs. Johnson is it to where she lived? A. It is right there on the main road, going 3 or 4, maybe 5 blocks, not much farther than that I do not think. page 211 ~Right down near to another Esso_ station; I would say about one-fourth of a mile. Q. Did you go to her home, or cause any one else to go there, to get that grease gun ? A. Yes, sir. I immediately called my place of business and had my truck sent down there, after she told me I could get the gun. I had a man to come with the truck and he stopped at the station to find out where to get the grease gun and I hold him, and there was a man at the station who offered to go down and show him where the.house was and help him load the grease gun. Q. Did you go down with the truck? A. Yes, sir. Q. At that time who was exercising complete dominion and control and ownership of the grease gun~ First National Bank of Waynesboro v. R.H. Johnson et als. 155 James S. Sinnnons, Jr. A. Mrs. Johnson; it was in her possession, so I imagined it was hers. Q. As I un~erstand it, you had the grease gun loaded into your truck? A. We took it off her back porch and put it in my truck. Q. Where did you take it? A. To my place of business in Staunton, Virginia. Q. How far is that from Waynesboro? A. 12 miles. Q. How long did you keep that piece of machinery in your place of business in Staunton? A. Approximately 3 days. page 212 ~ Q. During that time what did you do to it, if any thing? A. It was completely gone over~ cleaned off and adjusted and I put it in stock to be resold. Q. During that time did any one lay any claim to it? A. No, sir. Q. I,t appears that you sold the grease gun afterw~rds to Mr. Harding : Is that true ? A. Yes, sir. Q. Do you recall when you sold it to him? A. July 10, 1941. Q. Was that sale at first an oral sale? A. It was a verbal sale and then we filled out a contract on the 10th, and Mr. Harding had made a mistake in figuring his contract and that contract was destroyed and another one made during the same afternoon or the next morning, but the contract was dated July 11, 1943, but the original contract was torn up iri the presence of Mr. Harding. Q. I hand you a conditional sales agreement, marked for the purposes of identification, "Simmons Exhibit-Harding Contract," which I will ask you to file with your deposition, and I ask you if that is the contract covering the grease ·gun? A. I file the contract, as requested. It is the contract, the sec ond contract, that covers the grease gun. As I said before, the first one was destroyed in the presence of Mr. Harding. Q. Please state what dat~ that contract bears? page 213 ~ A. July 11, 1941. 156 Supreme Court of Appeals of Virginia James S. Simmons, Jr. Q. Please look at the Clerk's notation and see when it was recorded? A. July 11, 1941, at 1 :40. It does not say A. M., but you can not record contract at night. Q. To the best of your knowledge 11 :40 is the morning of July 11th? A. Yes, sir. Q. At what time had you delivered the property to Mr. Hard ing? A. , Yes, sir. Q. Please state which one of your employees received the grease gun from Mrs. Johnson? A. Tom Harner. Q. Is he still employed by you? A. Yes, sir. • Q. It appears from the Sheriff's return on his attachment that the attachment was levied on July 11th at 4 :00 P. M., or there abouts: At that time did you have in your possession the grease gun that we have been talking about? A. No, sir. Q. At that time who owned the grease gun? A. Mr. Harding. Q. Had you been paid for it completely, either in cash or its equivalent? A. Part payment. Q. You had received all the cash you were to receive? page 214~ A. A down payment on the contract? Q. And the property had been delivered? A. Yes, sir. Q. You had parted company with the property? A. Yes, sir. Q. From the time this property was turned over to you by Mrs. Johnson until the paper was served on you by Mr. Coiner, did any one in any way lay any claim to this piece of property? A. No, sir, they did not. Q. Did Mrs. Johnson turn this property over to you as though she had the right to do it and was the owner of it? A. Absolutely, yes, sir. Q. Mrs. Johnson has testified somewhere in her evidence, or it has probably been testified to by somebody else, that you or your First National Bank of Waynesboro v. R.H. Johnson et als. 157 Janus S. Simmons, Jr. servants or employees or agents, had something to do with remov ing the grease gun from the filling station ? A. That is not correct, no, sir. Q. Did you, or your employees, or servants or agents have any thing to do with the removal of the property from the filling sta tion? A. No, sir. Q. Do you know from your own knowledge, or the knowledge you have gathered from your employees or servants,. when the grease gun was removed? A. No, sir, I just heard she had moved it but when page 215 ~ I could not tell. CROSS EXAMINATION By Mr. Branaman: Q. You had been trading with Rodney Johnson for several years? A. Yes, sir.. Q. He had been a very good customer in your experience? A. Yes, sir. Q. When you sold him the grease gun you never retained the title, or took a contract against the gun? A. No, sir. Q. Was it a sale on open account? A. It was made this way: The grease gun was delivered quite a while before the station was opened, with the verbal understand ing that if he would pay for it within 30 days after he opened the filling station, we would allow him a 5 % cash discount; otherwise he would make arrangements to buy it on time. Q. You delivered the gun to him on those terms? A. Yes, sir. Q. As I understand it, you had no lien against the gun? A. No, sir. Q. You never called at his station any time after you delivered the gun to him? A. No, sir. Q. You heard that Mr; Johnson had absconded and page 216 ~left the state and then it was you went down to see about the situation? 158 Supreme Court of Appeals of Virginia Janus S. Simmons, Jr. A. Yes, sir, I did. Q. You knew that the gun was Mrs. Johnson's, was a part of his property ? A. I made the sale to him. Q. Now Mrs. Johnson, when you went to the station, was there and you and she talked about the gun? A. Yes, sir. Q. And it was she who told you the gun was up at the resi- dence? . ' A. Yes, sir. Q. Then you asked her whether you could get the gun? A. Yes, sir. Q. And she told you you could? A. Yes, sir. Q. And you went and got the gun and hauled it away? A. Yes, sir. Q. And after tha~ you sold the gun to Mr. Harding? A. Yes, sir. Q. And delivered it at the station? A. Yes, sir. Q. The same gun that was levied on by the Deputy Sheriff? A. . I did not know anything about the levy at all; he did not mention the gun at all; just said everything was attached? Q. Were you there? A. Yes, sir. page 217~ Q. That was on the.11th? A. I could not tell yqu the date to save my neck. Q : You happened to be at the filling station when the Deputy Sheriff levied on the property of Mr. Johnson? A. I was delivering the gun to Mr. Harding. Q. That is the same gun you sold Rodney Johnson? A. Yes, sir, that is right. By Mr. Edmunds: Q. Mrs. Johnson was not a party to the purchase of the gun when R. H. Johnson purchased it? A. There was no contract with her. Q. She was not present at the time you first sold it to him? A. No, sir, I had never seen Mrs. Johnson before. REDIRECT EXAMINATION First National Bank of Waynesboro v. R.H. Johnson et als. 159 James S. Sinmwns, Jr. By Mr. Carter: Q. Either I misunderstood you, or you misunderstood Mr. Branaman's question: Am I correct in this statement that the property, that is the gun, became Harding's property before the recordation of this conditional sales agreement, referred to as Sim mons Exhibit-Harding Contract? A. It was sold to Mr. Harding before I ever saw Mr. Coiner. Q. Then if Mr. Coiner did not come to .the station until the afternoon of the 11th, you had no interest in the gun whatever? A. None whatever; I had completed the deal entirely page 218 ~with Mr. Harding. RECROSS EXAMINATION By Mr. Branaman: Q. Let me understand you Mr. Simmons: You sold the gun involved to Mr. Rodney Johnson? A. Originally, yes, sir. Q. You delivered it to him? A. Yes, sir. Q. You retained no lien or anything of the kind against the gun for the balance, did you? A. No, sir, other than a note. Q. YOU claim no lien on the gun? A. No, sir, I had no lien on it. Q. After Rodney Johnson absconded and left the state, you went to the filling station property and did not find the gun there? A. Yes, sir. Q. Mrs. Johnson told you she had taken it to her home? A. Yes, sir. . Q. You asked her if you could get th~ gun? A. Yes, sir. Q. She said you could? A. Yes, sir. Q. You and your men went to Rodney Johnson's home; loaded the gun on your truck and brought it to your place of business in Staunton? page 219 ~ A. Yes, sir. Q. After that you sold the same gun to Mr. Hard- ing? 160 Supreme Court of Appeals of Virginia James S. Simnums, Jr., and T. R. HMner A. Yes, sir. Q. And the Deputy Sheriff arrived at the filling station about the time the gun was being delivered and levied on it on the 11th when you were there? A. I could not tell yot) what time it was. We had completed the sale and the gun was in his place of business, and I was through with the gun as far as I was concerned .. . Q. · It was levied on while you were in the station? A. They served some papers on all of us; said we would have tp go to Co"urt. By Mr. Edmunds: Q. What were you doing at the station at the time Mr. Coiner was there? A. I was there like every one was there. I had delivered the gun and I had gotten my papers. Q. For what purpose had you gone there? A. To complete this second contract but it was completed before the sheriff got there. By Mr. Taylor: Q. Do you know about what time the levy was made during the day?. A. During the af temoon some time; I could not tell you just what time in the afternoon. page 220 ~ Q. Do you authorize the Notary to sign your name to your deposition? . A. I do. Further this deponent· saith not. JAMES S. SIMMONS, JR. JAMES S. SIMMONS, JR. T. R. Harner, a witness of lawful age, called on behalf of the Simmons Parts Company, after being duly sworn, testified as fol lows: DIRECT EXAMINATION By Mr. Carter: Q. For whom do you work? First National Bank of Waynesboro v. R.H. Johnson et als. 161 T. R. Harner A. Mr. Simmons, the Simmons Parts Company. Q. Were you working for him the 7, 8, 9, 10, 11, 12 of July, 1941? A. Yes, sir. Q. Did you have occasion to go down to Waynesboro to get a piece of machinery? A. Yes, sir. Q. What piece of machinery did you go down to get that had been formerly sold to Mr. R. H. Johnson? A. A grease gun. Q. Where did you get it? A. At Mrs. Johnson's home. Q. Diel she send you there for it? page 221 ~ A. She did not send me there; Mr. Johnson got in the truck and went with me? Q. What Johnson was that? A. Mr. Johnson's brother; he was there working at the station at the time. Q. Where was it located? A. On Mrs. Johnson's porch. Q. What Johnson? A. Rodney Johnson's home. Q. Was she there? A. I did not see her. Q.Did you see her at the station? A. Yes, sir. Q. Was she the one that sent you there? A. Mr. Simmons was the one who told me to go, and the boy went with me. Q. Who helped you load? A. Mr. Rodney Johnson's brother. Q. What is his name? A. I don't know his first name. Q. Where did you take it? A. To the Simmons Parts Company. Q. Where is that? A. On New Street, Staunton. Q. How long did you keep it there? A. We had it there two or three days. Q. While there what did you do to it? 162 Supreme Court of Appeals of Virginia T. R. Harner page 222 ~ A. Cleaned it up . . Q. Was there any reconditioning on it? A. No, sir. Q. Then do you know what. happened to it? A. I taken it back to the station that Johnson run; that was Mr. Harding's. Q. ·Whom did you deliver it to? A. Mr. Harding. Q. What Mr. Harding? A. Mayor Harding. Q. Do you remember what day of the week that was? A. No, sir. Q. Do you remember the day of the month? A. I think it was in November; I don't remember. Q. You think you took it down there in November? A. I would not say. Q. You took it down there within a week after you got it from Mrs. Johnson? A. Yes, sir. Q. During that time, however long it was, it was at Mr. Sim mons' place in the city of Staunton, which is 12 miles from the town of Waynesboro? A. Yes, sir. Q. · Do you authorize the Notary to sign your name to your deposition when it has been transcribed? A. I do. page 223 ~ Further this deponent saith not. T. R. HARNER. T. R. HARNER. page 224~SIMMONS EXHIBIT-HARDING CONTRACT CONDITIONAL SALES AGREEMENT THIS AGREEMENT, Made this 11th day of July, 1941, by and between Simmons Parts Co., his or its successors or assigns, ( Sellers Names) · hereinafter called Seller, party of the first part, and A. R. Harding First National Bank of Waynesboro v. R. H. Johnson et als. 163 and Cecil Harding, Trading as, Harding Essa Station---- ,(Purchaser's Name) · ' Corner East Main St., and Commerce Ave., Waynesboro, Va. here- , (No.) Street (City) (State) hereinafter called Purchaser, party of the second party. WITNESSETH, That Seller in consideration of payments and agreements herein and in the Conditions on the reverse side hereof contained which on the part of the Purchaser are to be made and performed, has this day agreed to sell and has delivered, and Pur chaser has this day agreed to buy, upon the conditions contained herein and on the reverse side of this sheet, the following goods : Quantity ' Description of Goods Model Serial No. (a) 1 Lincoln Wall Battery 3622-T 396 Lubricating Outfit (b) (c) ------Purchaser acknowledges receipt of the above described articles ( hereinafter referred to as the "Goods") in good order and agrees in consideration thereof to pay: The sum of $368.25, of which the sum of $68.25 is paid in cash on the date hereof and the balance of $300.00 is evidenced by a Morris Plan Retail Trade Acceptance, bearing even· date page 225 ~with this agreement, drawn by Seller on Purchaser and accepted by Purchaser as evidence of, but not as pay ment for, unpaid purchase price. Said Acceptance is payable to the order of Seller on the 11th day of April, 1942, at The Morris Plan Bank of Virginia. The Purchaser, in order to further secure to the holder thereof the payment of said Acceptance, agrees to deposit with said holder, regular, periodical sums of money, aggregation the amount of said Acceptance in accordance with the following schedule: $25.00 on August 11th, 1941, and $25.00 on 11th of each month thereafter for 10 consecutive Months and $25.00 at maturity of said Accept ance, which said sums, at the option of said holder upon default by Purchaser in any of the conditions, provisions or covenants of this agreement, or at maturity of said Acceptance, may be applied in whole or in part as a credit on said Acceptance, but such appli cation shall not be deemed as a waiver of any other right said holder may have hereunder. Reference is specifically made to the provisions and conditions app.earing on the reverse side of this sheet under the caption "Con- 164 Supreme Court of Appeals of Virginia ditions," all of which are expressly made parts, terms and condi tions of this Agreement. For .value received the undersigned Seller hereby sells, assigns, transfers and delivers this conditional sales agreement, together with all his or its rights, title and interest therein, thereto, and thereunder, and in and to the goods therein described, to The Mor- ris Plan Bank of Virginia. page 226~ IN WITNESS WHEREOF, Seller and Purchaser have duly executed this agreement in duplicate, the day and year first above written. SIMMONS PARTS CO. ( Signature of Seller) Witness to Purchaser's Signature ...... By Jas. S. Simmons, Jr., Prop'r. HARDING ESSO STATION By: A. R. Harding ( Signature of Purchaser) By : Cecil Harding (SEE REVERSE SIDE HEREOF) First National Bank of Waynesboro v. R: H: Johnson et als. 165 THE MORRIS PLAN RETAIL TRADE .. ACCEPTANCE Staunton, Va., July 11th, 1941 No -- City of Drawer Date Twelve MONTHS FROM DATE PAY TO THE ORDER OF OURSELVES Three Hundred 00/00 DOLLARS ($300.00) The obligation of the Acceptor hereof arises out of the purchase of goods from the Drawer. 'J he Drawee may accept this bill payable at any Bank, Banker or Trust Company in the United States, which such Drawee may desig nate. All of the parties hereto waive present ment for payment, demand, protest, and notice of protest and non-payment, and hereby waive the benefit of their respective homestead ex emptions as to this debt and contract, and agree to pay costs of collection hereof, including an Attorney's fee, if incurred. TO Name of Drawee (Purchaser) Simmons Parts Co. Street Address Signature of Drawer ( Seler) By Jas. S. Simmons, Jr. City and State Prop'r. page ~27~ THE FOLLOWING APEARS ON THE REVERSE SIDE OF THE FOREGOING CONTRACT: CONDITIONS The conditions of this agreement are that the delivery of the goods by Seller to Purchaser does not pass title thereto, but the title thereto shall remain vested in Seller, or his or its assigns, until said Acceptance is fully paid and the conditions and covenants herein are fully performed by Purchaser. It is stipulated and agreed that the goods hereinabove described .are either now. upon or. will immediately be placed upon the pr~- 166 Supreme Court of Appeals of Virginia mises hereinabove described as being the address of the Purchaser, and said Purchaser, until said Acceptance is paid in full by him, shall not sell, let, assign, encumber, u:;;e for hire, dispose of or remove the goods from said premises without prior written con sent of -the holder of said Acceptance, and Purchaser shall keep and maintain the goods in good order and repair. Purchaser shall keep the goods free of all liens, taxes and charges. The holder of said Acceptance may, at the expense of the Pur chaser, provide insurance cov~ring the goods against loss or dam age from any cause. Any money paid out or expenses incurred by the Seller or holder of said· Acceptance in his or its judgment neces sary for the protection of his or its interest hereunder, shall be, 1 though not secured hereunder, recoverable from the pur- chaser. page 228 ~ Upon any default by Purchaser in any of the condi- tions, provisions or covenants of this agreement, the said Acceptance may be declared due and payable, without notice, at the option of the holder thereof, whether due according to its face or not, and the Purchaser sha11 on demand bv the holder of said Acceptance, forthwith deliver the goods to the holder in as good condition as when received by Purchaser, ordinary wear and tear excepted. Should Purchaser fail or refuse upon such demand to deliver the goods as aforesaid to the holder, Purchaser agrees that the holder shall have the right, without further notice or demand to forthwith take possession of the goods, whenever found, and for such purpose the Purchaser hereby authorizes the holder to enter any premises of Purchaser, with or without force or process of law, and forthwith to take possession of the g9ods and to sell such goods, or any part thereof, upon such terms, or in such man ner, \Yith or without notice, or advertisement of such sale as the holder or his assigns may deem expedient, at which said sale the holder shall have the right to become the buyer. The holder may, at his option, .by collection, suit or otherwise, enforce payment of said Trade Acceptance and no suits or legal proceedings with respect thereto shall, however, be deemed a waiver of said right ·of the holder to take possession on default or breach as aforesaid. If the holder shall take possession of the goods and upon a sale thereof the proceeds are insufficient to cover page 229 ~the sum or sums remaining unpaid. with respect to said Trade Acceptance, and the expenses caused by such re possession, removal, reparation, storage liens, attorney's fees, and sale, Purchaser agrees to pay any deficiency that may result. Any First National Bank of Waynesboro v. R.H. Johnson et als. 167 amount derived from said sale in excess of the amount necessary to cover said items shall be paid to the Purchaser. This Agreement and said Acceptance constitute the entire con tract between the parties and no waiver or modification of their terms or conditions shall be valid unless written upon or attached to this contr"-ct and signed by the parties. Any provisions or conditions herein contrary to the law of the State in which this agreement is made shall not invalidate any other part of this agreement. Purchaser acknowledges receipt from Seller of a true copy of this agreement and takes notice that all the rights~ title and inter ests of the Seller, in, to and under this agreement and in, to and under said Trade Acceptance are assigned by Seller to said Morris Plan Bank of Virginia, and Purchaser agrees, if The Morris Plan Bank of Virginia should refuse to accept said assignment, this agreement, at the option of the Seller, shall be null and void, where upon both Purchaser and Seller must return to each other what ever consideration they have received. This agreement and all of its provisions shall be binding upon and inure to the parties hereto, their heirs, personal representatives, successors and assigns. page 230~ No discount or rediscount or negotiation or renegotia- tion of said .Acceptance, whether accompanied by trans fer of title to said goods under this agreement or otherwise, shall in any manner operate to vest' title to said goods in the Purchaser before the payment in full by Purchaser of said Acceptance. Pur chaser hereby waives notice of any such discount, rediscount, nego tiation or renegotiation, and Purchaser hereby waives the benefit of any law now or hereafter in force the effect of which shall be that upon such disount or negotiation of the Acceptq.nce the title to said goods shall vest in the Purchaser. Pay. to the Order of THE MORRIS PLAN BANK OF VIRGINIA SIMMONS PARTS CO. By: Jas. S. Simmons, Jr., Prop'r. VIRGINIA: IN THE CLERK'S'OFFICE OF THE CIRCUIT COURT OF AUGUSTA COUNTY July 11, 1941 11 :40 MEMORANDUM Filed and Docketed 168 Supreme Court of Appeals of Virginia in Conditional Sales Book. No. 27 Page 22 Teste: HARRY BURNETT, CLER!( Endorsement: Filed in the Clerk's Office of the Circuit Court of Augusta County, April 29, 1942. Teste: J. M. BLACKBURN, Deputy Clerk. page 231 ~ REPORT OF MASTER COMMISSIONER, HERBERT J. TAYLOR. "This cause came on this day to be again and further heard upon the papers formerly read, upon the motion of Jas. S. Simmons, Jr., trading as Simmons Parts Company, by counsel, to defer taking action upon the report of Master Commissioner, J. Harry May, filed in this cause on February 27th, 1942 and was argued by coun sel. Upon consideration whereof, i't appearing to the court proper so to do, is adjudged, ordered and decreed that this cause be, and the same is hereby recommitted to a master commissioner of this court, who is hereby instructed to take such evidence as bears upon the rights and liabilities of Simmons Parts Company in this cause, the taking of which evidence the master commissioner shall com plete within 10 days and file his findings herein on the 11th day of May, 1942, which findings shall be considered along with the said Master Commissioner's report of February 27th, 1942." Commissioner's Office Staunton, Virginia May 8, 1942. To the Honorable Floridus S. Crosby, Judge of the Circuit C ourf of Augusta Count)', Virginia: The undersigned, your Commissioner in Chancery, in pursuance of the foregoing order of April 20, 1942, proceeded on page 232 ~on Monday, April 27, 1942, by consent of Attorneys rep resenting the several parties in interest, at the office of Curry Carter, in the City of Staunton, Virginia, to take the evidence of witnesses bearing upon the rights and liabilities of Simmons First National Bank of Waynesboro v. R.H. Johnson et als. 169 Parts Company in this cause, and having given due consideration of the same begs leave respectfully to report as follows. As ,vill be seen from the above decree of reference your Com missioner "is hereby instructed to take such evidence as bears upon the rights and liabilities of Simmons Parts Company in this cause." It thus appears that your Commissioner is only to report on the rights and liabilities of Simmons Parts Company. This report is supplemental to the report of Master Commissioner, J. Harry May, filed in this cause on, February 27, 1942. While his report deals primarily with the rights and liabilities of Standard Oil Company, the same reasoning and the same authorities relied on by him in the said report apply to the rights and liabilities of Simmons Parts Company. Commissioner May in responding to the requirement to state the rights, if any, of the Standard Oil Company, stated, among other things, that "it would appear therefore that in. the instant case the title to the property converted by the Oil Company did not pass by sale and transfer thereof to A. R. Harding and at that time was subject to attachment by creditors of Johnson." page 233 ~ He further says "The Oil Company could transfer to Harding only such title as it had, in the goods of John son, which was not the right of property therein, and Harding thereby became a converter." Reference is made by him to R. C. L., page 1139, Section 50, in support of the said proposition, and he adds: 'The above find ings apply with equal force to Sih1mons Parts Company, McClung Bros. and Blue Ridge Grocery Company for the goods they wrong fully reclaimed and converted." The relation of Simmons Part~ Company to the situation is set forth in the deposition of Mr. James S. Simmons, trading as Sim mons Parts Company, taken before your Commissioner on April 27, 1942. He states that he sold a grease gun ~o R. H. Johnson some time in the month of January, 1941, at the price of approxi mafely" $412.00, of.which sum Mr. Johnson paid $70.30 in cash and gave· a·note for the balance, and that the said balance as of July 7, 194t··was $342.00. · He says he did i:1ot reserve title or take a lien on the said pi:-_operty. He states that having heard Mr. John son had ·absconded he ··visited the filling station at Waynesboro operated by R. H .. Johnson~ :;on·- July 8, 1941, and that on going to the filling station he found that the Standard Oil Company of New Jersey, the lessor· of ~aid filling station,. had taken charge and -lha:t the" grease gun "had. beei1' removed to the Johnson home at 170 Supreme Court of Appeals of Virginia .Waynesboro. He talked to Mrs. Johnson and she told page 234 ~him where the grease gun was and following this he directed one of the men in his employ, Mr. Harner, to take the truck down and get the gun, which he did. When the gun was brought to the place of business of Simmons Parts Company in Staunton Mr. Simmons took charge of it and had it cleaned off and adjusted and put it in his stock to be re-sold. He had negotiations with Mr. A. R. Harding with reference to the purchase which culminated on July 11, 1941 in a sale to Harding, evidenced by a contract bearing date July 1, 1941 and recorded in the Clerk's Office of the Ciruit Court of Augusta County at 11 :40 a. m., July 11, 1941. It appears that sundry attachments were issued by creditors of R.H. Johnson and these attachments were levied by W. F. Coyner, Deputy Sheriff, on the afternoon of July 11, probably between three and four o'clock, on the grease gun along with other property. A. R. Harding had then taken over the filling station and the equipment and also the unsold "Esso Products' sold by the Stand ard Oil Company to R. H. Johnson and unsold by the said John son at the time he left Waynesboro. The law is so well established that a person selling to another person personal property and retaining no lien thereon can not re possess it, except by due legal process, such as judgment on the debt due by vendee to him and levy under execution thereon, page 235 ~or some other method provided by law, that it seems unnecessary to city authority. Counsel for Simmons Parts Company in the exceptions filed to the report of Commissioner May seems to intimate that the wife of R. H. Johnson had such interest in the grease gun as to warrant her in turning the gun over to Simmons Parts Company. Commissioner is unable to concur with this view. Mr. Hewlett, representing the Standard Oil Company of New Jersey states in his deposition ( page 58) as follows : In answer to question he says: "The inventory that we took only included products purchased from us. There were some other things but we told Mrs. Johnson that we would not be responsible for those things not purchased from us." He was then asked what became of them? He answered: "Some of them were taken by the people who sold the merchan dise to Johnson and some of them were taken to Mrs. Johnson's residence." He was then asked the question, By her or by you? And his First National Bank of Waynesboro v. R.H. Johnson et als. 171 reply was: "She hired a truck. We were only interested in getting them away from the station." Mrs. Johnson, on page 101, of the deposition taken before Com missioner May, was asked this question: "Q. The Standard Oil Company of New Jersey told you-the representatives down there Mr. Hawkins or Mr. Hewlett told you those things had to be taken out of the station ? page 236 ~ "A. Yes, sir." "Q. Did they tell you that before you moved the stuff." "A. Yes, sir." "Q. That is why you moved it?" "A. Yes. sir." There is no evidence in the record that Mrs. Johnson ever ac quired any interest in the grease gun or had any rights therein whatsoever, And it is apparent from the testimony of the Standard Oil Company and that of Mrs. Johnson herself that she only re moved the gun to her house because she was told by the represen tatives of the Standard Oil Company, who had taken charge, that this and other property, not theretofore sold by the Company to Johnson, had to be removed. She evidently knew of no other place to take the property. · Your Commissioner is in accord wit~ the conclusion arrived at by Master Commissioner May in his report as to the rights and liabilities of the Simmons Part~ Company, in this cause, and reports that in his opinion the Simmons Parts Company had no legal right to repossess the grease gun, or to resell it to Mr. Harding to the prejudice of attaching creditors, and that having no title to said grease gun at the time of .the sale to Mr. Harding did not vest Mr. Harding with legal title. In other words, Mr. Hard page 237 }ing could take no better title than the Simmons Parts Company had, and they had no title which they could legally pass, to Mr. Harding. Therefore, Commissioner is constrained to find that the attach ing creditors have priority over the claims of the Simmons Parts Company and Mr. Harding to righ~s in the said property in the order set out in Commissioner May's report. Your Commissioner herewith returns evidence taken before him in this matter, and the exhibits filed therewith. Respectfully submitted, HERBERT J. TAYLOR, Commissioner in Chancery. 172 Supreme Court of Appeals of Virginia I hereby certify that I have this day mailed written notice of the filing of this report to counsel of record for all parties who have appeared in these causes. HERBERTJ.TAYLOR Commissioner in Chancery. May 11, 1942. Endorsement: Filed in the Clerk's Office of the Ciruit Court of Augusta Coun(y, May 12, 1942. Teste: J. M. BLACKBURN, Dep. Clk. page 238~ EXCEPTIONS OF SIMMONS PARTS COMPANY TO REPORT OF MASTER COMMISSIONER, H.J. TAYLOR Simmons Parts Company, Co-Defendant in the first above cause, without waiving any of its exceptions heretofore filed to the report of Master Commissioner May, excepts to the report of Master Commissioner Herbert J. Taylor filed on May 12th, 1942, upon the following ground : · 1. The Commissioner finds that attaching creditors have prior ity over Simmons Parts Company and R. H. Johnson in a certain grease gun mentioned in said report. Simmons Parts Company acquired ownership of this grease gun from Mrs. R. H. Johnson, who had it in her possession and w:ts exercising full, complete and exclusive ownership and control there of at the time it was delivered to the Simmons Parts Company, who, by treaty with Mrs. Johnson, peacefully and lawfully acquired exclusive ownership of said grease gun and put it in his place of business as a part of his stock of merchandise and later sold it to Mr. A. R. Harding; there was no conversion of the property either by Simmons or by Harding, and the latter acquired good title to it. 2. If the effect of the findings of Master Commissioner Taylor is that Harding or Sinunons should return the grease gun or its equivalent, this exceptant submits that said property or its value cannot be recovered in this proceeding. page 239~ SIMMONS PARTS COMPANY Simmons Parts Company, By Counsel. First National Bank of Waynesboro v. R.H. Johnson et als. 173 Curry Carter, Attorney for Exceptant. Endorsement: Filed in the Clerk's Office of the Circuit Court of Augusta County, May 15, 1942. Teste: J.M. BLACKBURN, Dep. Clk. And now at this day, at a Circuit. Court held for Augusta Coun ty, Virginia, on the 25th day of October, 1943. DECREE SUSTAINING EXCEPTIONS TO COMMISSION- ERS' REPORTS. - These causes, which are heard together, came on this day to be again heard upon the papers formerly read and the proceedings therein heretofore had, upon the report of master commissioner ]. H. May, filed February 27, 1942, (with the evidence returned therewith), upon seven exceptions to said report of said Standard Oil Company of New Jersey and upon two exceptions to said report of James S. Simmons, Jr., trading as Simmons Parts Company, upon the supplemental report of master commissioner Herbert J. Taylor, filed May 12, 1942, (with the evidence returned therewith) and upon two exceptions of James S. Simmons, trading as Sim mons Parts Company, to said last named report, and were argued by counsel. Upon consideration whereof, the court, for reasons stated in writing and made a part of the record, doth adjudge, page 240 }order and decree ; ( 1) That the amount owing by Standard Oil Com pany of New Jersey to the principal defendant, R. H. Johnson, is capable of being and is readily to be ascertained by amputation or caluculation, and does not lie in opinion, and that the rights of each of the complainants, attaching reditors, against the said co def endant, can rise no higher than the rights of said principal deb tor; ( 2) That at the time of the service of process in these suits and of said attachments upon Standard Oil Company of New J er sey, a corporation, the said co-defendant was indebted to R. H. Johnson, principal defendant, in the sum of $99.29, and no more, being the difference between the sum of $1,206.14 owing by said Standard Oil Company of New Jersey to the principal defendant R. H. Johnson and the sum of $1,106.85, the account of said 174 Supreme Court of Appeals of Virginia Standard Oil Company of New Jersey against said Johnson, which is to be set off against the same; ( 3) That at the time of service of process and said attach ments upon James S. Simmons, Jr., trading as Simmons Parts Cof!Ipany, co-defendant, the said James S. Simmons was not in debted to and had in his hands no property of, or indebtedness owing to, the said principal defendant, the said R. H. Johnson. ( 4) That accordingly the exceptions taken by said Standard Oil Company of New Jersey to the said report of master commissioner J. H. May, filed February 28, 1942, be page 241 ~and they are sustained, and the said report, to the ex tent stated, is disapproved. ( 5) That the exceptions taken to each of the said two reports by James W. Simmons, Jr., trading as Simmons Parts Company, be and they are sustained, and each of said reports, to the extent stated, is disapproved. ( 6) And the court doth further adjudge, order and decree that the said Standard Oil Company of New Jersey do pay to the Sheriff of Augusta County the said sum of $99 .29 so found owing by it to R. H. Johnson, principal defendant, to be received and disbursed in these causes by the said Sheriff as the Court hereafter may direct; and that upon such payment the said the Standard Oil Company of New Jersey be and it is dismissed as a party def end ant to each of said causes. ( 7) And the court doth further adjudge, order and decree that said James S. Simmons, trading as Simmons Parts Company, be and he is dismissed as a party defendant to these causes. On Motion of The First National Bank of Waynesboro, Vir ginia, this decree is suspended for the period of ninety (90) days after the entry hereto to permit application for an appeal and super sedeas if said Bank be so advised. page 242 ~ OPINION OF THE TRIAL COURT The Pertinent, undisputed facts as found by the conunissioner in chancery are: One R. H. Johnson operated what is commonly known as a filling station in Waynesboro, Virginia, at the corner of Jefferson Highway and Commerce Avenue in the said town, under lease from the Standard Oil Company of New Jersey; pur chased its products and bought from others also. On the night of July 7, 1941, Johnson absconded. On the morning of July 8, 1941 agents of the Standard Oil Company of New Jersey took charge, First 'National Bank of Waynesboro v. R.H. Johnson et als. 175 operated the filling station on that day and on the ninth; and credit ed the proceeds received from sales to the indebtedness which Johnson owed the Company. They also made an inventory of all their products sold Johnson; and on the morning of July 11, 1941 sold the inventoried products to one A. R. Harding, and he at that time signed and executed a lease to the premises. Some time after Johnson absconded and prior to July 1, 1941, the Simmons Parts Company of Staunton, Virginia, received from Mrs. John son, the wife of R. H. Johnson, a grease gun of the value of four hundred dollars, which had been removed to the Johnson home. It was taken to Statinton, reconditioned, sold and delivered to A. R. Harding on the morning of July 11, 1941. In the afternoon of July 11, 1941, between the hours page 243 ~of three and four o'clock, a deputy sheriff levied a num ber of attachments on the property sold by the Stand ard Oil Company of New Jersey to Harding, and on the grease gun sold by the Simmons Parts Co. of Staunton to Harding. The attachments were issued pursuant to suits on the equity side of the court filed on behalf of the First National Bank of Waynes boro and S. H. Hall trading as the Blue Ridge Grocery Company against the Standard Oil Company of New Jersey and the Simmons Parts Company of Staunton, and other co-defendants. The cases were referred to a master commissioner, who reported adversely to the Standard Oil Company of New Jersey and the Simmons Parts Company of Staunton upon the ground that John son's claim is for unliquidated damages for a tort; that there can be no set-off against unliquidated damages for a tort and that the election to waive the tort and sue an assumpsit upon an implied contract can not be exercised by the Standard Oil Company of New Jersey. The same finding was made against the Simmons Parts Company of Staunton, although they denied that they were in the position of a tort f easor and claimed title to their property through delivery from the wife of Johnson to them. This raises an interesting question, and in fact it is the sole question in the case, of the right of one garnished in respect of property wrongfully taken from the debtor to set off his own claim against the latter. I find no case in Virginia precisely in point. And in page 244 ~fact, only two in this country which may be considered as dealing with the question involved. One case is that of Allen v. Hall, 5 Metcalf (Mass.), 263 decided by Chief Justice Shaw in 1841; and the other is entitled J. !. Smith Litmber Com- 176 Supreme Court of Appeals of Virginia pa~zy v. Scott Garbag:e R.editcing a11d Fuel Company, (Iowa), 128 N. W. 389, 30 L. R. A. (N. S.) 1911, p. 1185. Opposite con clusions were reached in these cases, though I think both of them were correctly decided. Chief Justice Shaw throws so much light on the principles involved that I now quote from his opinion as follows: - "The great question then, the only question is, whether he owes the principal debtor any thing; and if it appears that he does, he is held liable to pay it to his creditor's creditor, instead of paying it to the creditor himself. It is unnecessary here to consider the various questions which may arise, as to the nature of such debts, whether absolute or contingent, and the nature of such contingency; whether, if uncertain at the time, it can be made certain at a future time, by sales, collections of money or other proceedings, showing that in· point of fact the· trustee was a debtor to the principal at the time of the attachment. In such cases, although the facts are sub sequently disclosed, and the accounts subsequently adjusted, fa order to charge the trustee, the result must show that the trustee was a debtor to the principal, at the time of the attachment. "This distinction between the two classes of cases will go far to show in what cases the trustee may or may not set off such claims as he may have against the principal debtor, and to reconcile what may, without discrimination, be deemed to be conflicting authorities. "On the provision, in which the trustee is charged as a debtor, it is very obvious that as he is a mere third party, called in to pay his debt, in a manner different from that in which he was bound to pay it, and in which his own rights are not drawn into contro versy, he ought not to be placed in a worse situation than he would be, if he were called to make the settlement with his creditor. The , balance only, after all just allowances, is the sum for which he ought to be held. He shall therefore have the benefit of a set off, legal or equitable, in his own right, or in the right of those with whom he is privy, and in whose favor the debt claimed to be due from the trustee could, in his hands, be made available, by way of set-off in any of the modes provided by law. Hathaway v. Russell, 16 Mass. 473. Picquet v. Swan, 4 Mason, 4,43. "But where the trustee has goods in his custody, the· property of the principal defendant, and in their nature liable to be page 246 ~attached by the process of law, the question, whether the trustee has any right to set off claims of his own, must First National Bank of Waynesboro v. R.H. Johnson et als. 177 depend upon the fact whether he has ayn lien, legal or equitable, upon such goods, or any right, as against the owner, as whose property they are attached, by contract, by custom, or otherwise, to hold the goods, or to retain the possession of them, in security of some debt or claim of his own. If the party, who is summoned as trustee, has a mere naked possession of the goods, without any special property or lien; if the principal debtor is the owner, and has a present right of possession, so that he might lawfully take them out of the custody, or authorize another to take them out of the custody, of the present holder ; they would be liable to be at tached as the property of the general owner, by an officer, under the common process of attachment, if he could have access to them, and no right of the trustee would be violated. But if the officer cannot have access to the goods, so as to take them into custody; if they are secreted by the trustee, or if the trustee sets up pretended claims and rights of possession, so that the creditor and officer cannot safely take them out of the custody of the trustee, and require the answer and disclosure of the trustee, as page 247 ~to the grounds of his claim to the property or possession ; then he may be summoned as trustee ; and if it shall subsequently appear, on his disclosures, that he had only such nak ed possession, without any lien or right of possession, then the goods stand charged in his hands, till judgment and execution; and he has no greater right to charge these goods with a debt of his own, by way of set-off, than he would have had, if the goods had been taken into custody by the officer, at the time of the at tachment. This, we think, is the result of the laws of this subject. Allen v. M egguire, 15 Mass. 490. Sit'£tf v. Brown, 5 Pick. 178. Brewer v. Pitkin, 11 Pick. 298. "We are next to consider how these principles apply to the facts of the present case. It appears that the respondent, Hall, sued out a writ against his debtor, Joseph Tufts, and caused his goods to be attached by an officer. Before judgment, without the consent of the debtor, and without the appraisement and certificate required by law to warrant a sale of goods attached on mesne process, the defendant caused the goods to be sold, and, for aught that appears in his answers, had them in his possession at the time of the ser vice of this trustee process. This sale, it is manifest, was wholly void, being not conformable to the Rev. Sts. c. 90, and not authorized by law. Howe v. Starkweather, 17 Mass. page 248r240 Russell v. Dudley, 3 Met. 147. · "The respondent obtained the bare custody of the 178 Supreme Court of Appeals of Virginia goods, without lawful possession or right of possession. If . the respondent could have the goods in security of his original debt against Tufts, or set off that debt, under this process, he wo1;1ld in effect get possession of his debtor's goods, under color of legal pro cess, without conforming to the requisitions of law, and thus avail himself of such unauthorized possession, to the same extent as he had taken and sold the goods on execution in conformity to law; which he cannot do." So much depends upon the statutes of a given state that cases of another jurisdiction are of little help; but this seems to be the line of cleavage between diverging views : Whether the property or goods wrongfully taken is in the possession of the wrongdoer at the time it is sought to be subjected by the owner or his credi tors, or whether it has been sold and disposed of or conmingled with other property so that it can not be identified. It should also be noted at this point that in questions involving fraud, wholly different principles apply from those under consider ation here. Let it be said that the garnishee occupies the same position as if sued by, the principal debtor defendant, Baltimore & page 249 ~Ohio Railroad Company v. M cCulough, 12 Grattan, 595: "The rights of a plaintiff against the garnishee are the same as, and can rise no higher, than the rights of the principal debtor." Bolling v. Bluefield ·Graham. Fair Association (\V. Va., 99 S. E., 189; North Chicago Rolling Mill Compa.ny v. St. Louis Ore and Ste.el Company, 152 U. S. 596, 619. It is now proper to determine what Johnson's rights are which thus limit any recovery by the attaching creditors; and I quote from the Standard Oil Company of New Jersey brief as follows: "Johnson, waiving the tort, could sue in assumpsit upon the Standard Oil Company's implied contract to pay for the goods it has converted, asking the market price thereof, $1,206.14; the Standard Oil Company would be allowed as a set-off its open ac count, $1,106.85. Johnson's recovery would be $99.29. "Johnson could sue in trover. The recovery would be money, not the goods, for the plaintiff in trover can not recover the things themselves, hut only their market value. 4 Minor's Inst. pt. 1, p. 448; 26 R. C. L., p. 1127. But since the Standard Oil Company has applied $1,106.85 of the proceeds of its conversion to the pay ment of Johnson's ·-indebtedness, the amount so paid will go in First National Bank of Waynesboro v. R.H. Johnson et als. 179 mitigation of damages. 26 R. C. L., Trover, p. 1156; 1 Suther land, Damages (3d ed.), sec. 156. Johnson's recovery would be $99.29. It is clear that Johnson could ,waive the tort page 250 ~and sue on an implied contract in assumpsit; but his creditors, the ataching plaintiffs, can not exercise the choice for him. The Virginia statute does not permit creditors to attach a right of action for a tort sounding in unliquidated damages. If the dam ages are unliquidated, so as to forbid set-off by the Standard Oil Company of New Jersey, the court is without jurisdiction in the attachment. Applying the rule in Tidewater Quarry C onipany v. Scott, 105 Virginia, 160, 163: "But what are uncertain, unliquidated damages? ****'They are such as rest in opinion only, and must be ascertained by a jury, their verdict being regulated by the peculiar circumstances of the particular case; they are damages which can not be ascertained by computation or calulation. ****In these or like cases, there is no data given for computation; nor can the damages be ascertained by any mode of calculation. It is otherwise as to the amount clue on a note, or on a merchant's account, or for work, labor and ser vices, or for a yard, a piece or a bale of flannel; the damages in such cases can be readily ascertained by calculation'." To the same effect, see also New Idea Spreader Compan)' v. Rogers & So?is, 122 Virginia, 54; and Maclin Peamtt Compa.ny v. Pretloio Coni- pany, 176 Virginian, 400, 411." "'"' it is readily seen that the accounts are merely those between merchants and are therefore capable of ascertainment page 251 ~and do not lie in opinion. Under our law and, indeed, in the light of the principl~s so clearly expressed by Chief Justice Shaw in the Massachusetts case, in order to charge the garnishee ( the Standard Oil Company of New Jersey a,nd the Simmons Parts Company of Staunton), they must either have actual possession of the judgment debtor's property (Johnson), or be indebted to the judgmeint debtor (John son) at the time the attachment was served or the garnishment ex ecuted. In this case they had absolutely disposed of the property of John son which they had converted or which had come into their pos- 180 . Supreme Court of Appeals of Virginia session, as the Simmons Par.ts Company claims, and had nothing in their ·hands upon which the attachments might properly be levied. All that the attaching creditors can recover from the Standard Oil Company of New Jersey is the sum of $99.29; and from the, Simmons Parts Company, nothing. For the reasons herein set forth, the reports of the master com missioner must be set aside and the exception sustained. A decree may be tendered in conformity with the views herein expressed. (s) FLORIDUS S. CROSBY, Oct. 6, 1943. Judge. page 252 ~ STATE OF VIRGINIA, County of Augusta, to-wit : I, Harry Burnett, Clerk of the Circuit Court of Augusta County, Virginia, do certify that the foregoing is a true transcript of so much of the record and proceedings of said Court, as designated in the notice given by the Plaintiff, The First National Bank of Waynesboro, to the Defendants hereinafter mentioned, said De- , fendants requiring nothing more, in the cause of The First National Bank of Waynesboro, Va. vs. R. H. Johnson et als and S. H. Hall trading as Blue Ridge Grocery Co. vs. R. H. Johnson et als, as the same appears on file and record in the Clerk's Office of said Court. I, further, certify that it has been made to appear to me that the notice required by Section 6339 of the Code of Virginia of the intention of the Plaintiff, The First National Bank of Way nesboro, Va., in said cause to apply for this transcript for the pur pose of appeal, has been given to the Defendants, Mary C. John son, Standard Oil Co. of New Jersey, Simmons Parts Co. and A. R. Harding or their Attorneys of record in said cause. Given under my hand this 27th day of December, 1943. HARRY BURNETT, Clerk of the Circuit Court of Augusta County, Virginia. Fee for Transcript $90.00. A Copy-Teste: M. B. WATTS, Clerk. INDEX TO RECORD Page Bill and exhibit note attached ...... 18 Motion of Standard Oil Company to quash ...... 21 Answer of $immons Parts Company ...... 22 Answer of. Standard Oil Company with Exhibit account attached ...... 23 Decree of Reference ...... 26 Evidence: W. D. Shumate ...... 29 vVm. F. Coyner, Jr...... 32 S. H. Hall ...... 43 Mary C. Johnson ...... 44-90 W. J. Hewlett ...... ~ ...... 58-97 R. W. Hankins ...... 76 Merlin Johnson ...... ~...... 110 James S. Simmons, Jr...... 152 T. R. Harner...... 160 Original Inventory ...... 114 Affidavit of W. L. Crumpler ...... : ...... 118 Agreement of R. H. Johnson with Standard Oil Company.. 119 Lease from Standard Oil Company to· R. H. Johnson ...... 119 3 Invoices of Standard Oil Company to R. H. Johnson . . . . 122 2 Checks from R. H. Johnson to Standard Oil Company . . . . 126 Receipt of Mary C. Johnson to Standard Oil Company . . . . 127 Bill of Merlin Johnson against R. H. Johnson ...... 128 Report of Master Commissioner May ...... 129 Exceptions of Standard Oil Company to report Master Commissioner May ... ~...... 146 Decree of Recommittal as to Simmons Parts Company . . . . 148 Exceptions of Simmons Parts Company to report of Master Commissioner May ...... · ...... 148 Further Exceptions of Standard Oil C9mpany to report of Master Commissioner May ...... 149 Agreement between Simmons Parts Company and A. R. Harding ...... ·..... 162 Report of Master Commissioner Taylor ...... 168 Exceptions of Simmons Parts Compan:Y to report of Master Commissioner Taylor ...... - ...... 172 Decree sustaining exceptions to Commissioners' Reports . . . . 173 Opinion of the Trial Court ...... 174 Authentication of record ...... 180