Stephens v. Bartlett

• Decision Date: 23 March 1937
• Docket Number: 8467.
• Citation: 191 S.E. 550,118 W.Va. 421
• Parties: STEPHENS v. BARTLETT et al.
• Court: West Virginia Supreme Court

191 S.E. 550

118 W.Va. 421

STEPHENS v. BARTLETT et al.

No. 8467.

Supreme Court of Appeals of West Virginia.

March 23, 1937

Submitted February 24, 1937.

Rehearing Denied June 17, 1937.

Syllabus by the Court.

1. "It is the province of the court, and not of the jury to interpret a written contract." Franklin v. Lilly Lumber Co., 66 W.Va. 164, 66 S.E. 225.

2. An appellate court will not set aside the verdict of a jury founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence.

Error to Circuit Court, Roane County.

Proceeding on motion for judgment by W. L. Stephens against Howard Bartlett and Sarah Mace, administratrix of the personal estate of Van Mace, supplemental to an action on a written contract. To review a judgment for plaintiff, defendants bring error.

Affirmed.

Thos P. Ryan and Wm. S. Ryan, both of Spencer, for plaintiffs in error.

Grover F. Hedges, of Spencer, for defendant in error.

MAXWELL Judge.

This is a proceeding on motion for judgment by W. L. Stephens against Howard Bartlett and Sarah Mace, administratrix of the personal estate of Van Mace, deceased. On writ of error there is presented for review a judgment for $783.88, on verdict in favor of the plaintiff and against the defendants. A new provision of statute, Code 55-8-8, makes it possible, in an action on contract, to join as defendant with a living obligor the personal representative of a deceased obligor. Prior to the enactment of said statute, this could not be done. I Barton's Law Practice (2d Ed.) p. 144; IV Minor's Institutes (3d Ed.) p. 447.

The action is based on a written contract dated July 10, 1933, between W. L. Stephens, party of the first part, and Howard Bartlett and Van Mace, parties of the second part. The contract was for the drilling of a well for oil and gas purposes on a lease owned by Bartlett and Mace.

The contract provided that for services rendered and materials furnished by Stephens in the drilling of the well, he should be paid $2,400, and assigned an undivided 8/32 of the working interest in the lease. The lessees were "stocking out" the working interest in the lease at the price of $130 for each 1/32. The contract carries a provision that the 6 5/8-inch casing required to be used in the drilling of the well should be furnished by Stephens; further, if the well should prove to be a producer of oil or gas, the said casing should be purchased of Stephens by Bartlett and Mace at the price of 50 cents per lineal foot. No provision was made for the purchase of the casing by the lessees if the well should be nonproductive, evidently because, in that event, they would not need the casing.

In pursuance of the contract, Stephens drilled the well. When the time arrived for the 6 5/8-inch casing to be inserted into the well under the established method in the course of drilling, Stephens brought to the well for the purpose of using therein some casing which Mace thought was too light. Thereupon, heavier casing was obtained from Max Baren, a dealer in oil and gas well supplies at Parkersburg. The sale price charged by Baren for the casing was $1,029.15. Baren seemed to have some doubt about the financial strength of Stephens, therefore, on Baren's books of account, a charge for the casing was entered against Bartlett and Mace, though Baren, at the trial, testified that Mace told him the casing was to be used by Stephens and should be charged to him. The casing was acquired from Baren under a trade custom whereby, if a well for which casing is procured and wherein it is used proves to be a "dry hole," the casing may be returned to the dealer and a rental paid him for the use thereof, otherwise the full sale price is to be paid. Bartlett and Mace paid Baren $300 on ac count of the casing, leaving $729.15 due Baren, and credited themselves with $300 against the $2,400 which the contract provided they should pay Stephens. When the well, on completion, proved nonproductive, the 6 5/8-inch casing was pulled therefrom. Soon thereafter, Mace sold the casing to W. B. Heater for $829.15, being the full amount of the balance owing Baren, plus $100 profit to Mace. At about the same time, Stephens negotiated a sale of the casing to Guy Boggess for $1,029.15, being the original cost of the casing. But Boggess did not get the casing; it was hauled away by Heater.

The plaintiff takes the position that though Bartlett and Mace assisted him in obtaining the 6 5/8-inch casing from the Parkersburg dealer, the casing was bought for him and was under his control; that after it was pulled from the well, it remained his property; that because of the wrongful sale thereof by Mace (who at that time seems to have succeeded to the rights of Bartlett) the plaintiff was deprived of the opportunity...