Barrett v. Coal
| Decision Date | 22 March 1904 |
| Citation | 55 W.Va. 395 |
| Court | West Virginia Supreme Court |
| Parties | Barrett v. Raleigh Coal & Coke Co. |
1. Demurrer to Evidence. Verdict of Jury.
In treating a demurrer to evidence as on a verdict of a juryin favor of the demurree, the court should be governed by the rules and principles established in the case of Johnson v. Burns, 39 W. Ya. 658, and not the old rules and principles thereby superceded and rendered obsolete, (p. 397).
2. Demurrer to Evidence Evidence Conflicting.
On demurrer to evidence, if it be conflicting, judgment in favor of the demurree should be given, unless the evidence plain ly and decidedly preponderates in favor of demurrant oil some decisive point, (p. 398).
3. Demurrer to Evidence. Decided Preponderance.
On demurrer to evidence, if the evidence though conflicting, plainly and decidedly preponderates in favor of the demurrant, on some decisive point, the demurrer should be sustained, and judgment should be given for the demurrant, (p. 398).
4. Demurrer to Evidence. Overruled When.
On a demurrer to evidence, although the evidence in favor of the demurree may be weak, doubtful or questionable, the demurrer will be overruled unless on some decisive point at issue, the evidence in favor of the demurrant plainly and decisively preponderates over the evidence as to the same point in favor of the demurree. (p. 398).
5. Demurrer to Evidence Judgment Reversed.
When the circuit court has found for the plaintiff on a demurrer to evidence by the defendant, this Court will not disturb such finding, unless it is against the plain and decided preponderance of the evidence, or is wholly without evidence to support it. (p. 399).
6. Broken Contract. Measure of Damages.
A plaintiff contractor who sues for the profits on his contract, which he was prevented from fulfilling by his employer, without fault on his part, is entitled to recover the full consideration for such contract, less the expense of fulfilling the same. (p. 401).
7. Broken Contract Certainty as to Damages.
Plaintiff in such a case is not bound to prove what his profits would have been with absolute certainty, but only with such reasonable certainty as will satisfy a jury as to the reasonableness of his demand or estimate. Remote or doubtful contingencies are insufficient to destroy the reasonable certainty of such demand, (p. 402).
8. Demurrer to Evidence. When Judgment Reversed.
A judgment in favor of demurree on conflicting evidence will not be disturbed unless upon a plain legal ground, sufficient to preclude any recovery on the part of the demurree. (p. 402).
Error to Circuit Court, Raleigh County. Action by Leon Barrett against the Raleigh Coal and Coke Company. Judgment for plaintiff. Defendant brings error.
Affirmed.
John H. Hatcher and W. A. French, for plaintiff in error.
Brown & Ball, W. L. Ashby and A. A. Lilly, for defendant in error.
The Kaleigh Coal and Coke Company complain of a judgment of the circuit court of Baleigh County, rendered against it on the 28th day of July, 1903, for the sum of $930.00, at the suit of Leon Barrett. The plaintiff obtained a judgment on a former trial, which was brought here by the defendant and reversed. Barrett v. Goal Co., 51 W. Va. 416. On a second trial, the jury rendered a second verdict in favor of the plaintiff, which on motion of the defendant, was set aside by the circuit court. On the third trial, the defendant probably fearing an adverse verdict against it which might not be set aside, demurred to the evidence so as to cast on the court the duty of deciding the law in the case applicable to the evidence. The circuit court overruled the demurrer, and entertained judgment for the defendant. Hence this writ of error.
The first question that presents itself is as to what rule should govern in cases of demurrer to evidence, the new rule of Maple v. John, 42 W, Va. 30, supported by Talbott v. Railroad Co., 42 W. Va. 560, and Teal v. Ohio R. R. Co., 49 W. Va. 85, or the old mle as held in Shaver v. Edged, 48 W. Va. 502 (37 S. E. 8), sustained by Hogg's Pleadings and Forms, 537. Or can and should these rules be reconciled to mean virtually the same thing, except that the old rule is modified by the holding of this Court in the case of Johnson v. Burns, 39 W. Va. 658.
In the case of Shaver v. Edgell, 48 W. Va. 512, Judge Brannon says:
In the latter case it is said "If the evidence is such that, if there were a verdict in favor of the demurree, the court ought not to set it aside, then on demurrer to the evidence the court ought to give judgment against the demurrant."
Both these cases were decided since the case of Johnson v. Burns, cited. Hence when they nse the word verdict, they mean a verdict determined according to the rule laid down in the latter case, and not the rule existing prior to that time. The old rule regarding the review of a verdict of a jury was modified by the holding in the case of Johnson v. Burns, to suit the statutory requirement that the court should consider the whole of the evidence certified, and thereby incidentally modified the rule relating to the consideration of the evidence on demurrer, and this is the new rule established in the case of Maple v. John. To hold otherwise we must say in cases of demurrer to evidence, that when the word verdict is used, it is according to its ancient effect prior to the decision of Johnson v. Burns. This would make unnecessary confusion between the present rule relating to motions to set aside the verdict of juries, the motion to exclude the evidence, the motion to direct a verdict and a demurrer to the evidence, all which motions should be governed by the same principles of law, and this is that where the evidence plainly preponderates in favor of a litigant, he is entitled to judgment. If the evidence so plainly preponderates in favor of the demurrant a verdict of a jury in favor of the demurree would be set aside then the court will sustain the demurrer, and give judgment for the demurrant, otherwise the judgment must be for the demurree. This verdict must be governed by the new standard established by the case of Johnson v. Burns, and not the old standard that was thereby modified. On the subject of the conflict of evidence the rule then would be that all the evidence of the demurrant in conflict with the evidence of the demurree should be rejected unless the conflicting evidence of the demurrant so plainly preponderates over the evidence of the demurree, that if there were a verdict in favor of the latter it would be set aside, and in such case the demurrer must be sustained. For if the evidence, although conflicting, plainly preponderates in favor of the demurrant, judgment should be entered accordingly.
This makes judgment on demurrers to evidence harmonize with the later decisions founded on the verdicts of juries following the case of Johnson v. Burns. Miller v. White, 46 W Va. 68; Limer v. Traders Co., 44 W. Va. 175; Davidson v. Railway Co., 41 W. Va. 407 (23 S. B. 593).
Following this rule, the judgment in favor of the demurree in this case, cannot he disturbed, unless the evidence, thoagb conflicting plainly and decidely preponderates in favor of the demurrant, or the evidence of the demurree is for some reason legally insufficient to sustain the judgment.
The first question raised by the demurrant is that the writing introduced by the defendant is not a completed contract binding on the defendant, because not signed by its president and sealed with its corporate seal, but is only signed by its superintendent, William Lang. Nevertheless it was received by the company, and acted on between the parties as a completed contract, and on the former appeal to this Court no such objection was interposed, but the contract was admitted so that the court cannot do otherwise than treat it as a binding contract between the parties thereto, and a jury would have the right to find that it was ratified and confirmed by the conduct of the parties in relation thereto, and such finding could not be disturbed. The plaintiff's case is that he was to make and burn 500, 000 brick for the defendant at the price of $5.00 per thousand to the satisfaction of the superintendent, on the defendant's land; the defendant to furnish the clay and the coal necessary to burn the bricks; that he proceeded to get ready to make and burn the whole amount of brick by preparing the yard and securing the necessary implements; that he made and burned sixty thousand (60, 000) of such brick; that he was then notified by the then superintendent. Mr. Bunn, not to make any more brick as the company had all the brick it needed, and more too; that he then saw the president, who told him not to make any more brick; that when they needed any more they would make another contract; that plaintiff's contract was a mere memorandum, not binding on the defendant; that plaintiff answered that he would see whether it was not a binding contract, and refused to sign a receipt in full on payment of his hands for the labor performed by them, claiming that the defendant should pay for the preparation made for making the five bundled thousand brick. This the defendant refused to do. The plaintiff then brought this suit, claiming as due him a prospective profit of $2.00 per thousand on the whole 500, 000 brick, deducting therefrom the amount already received by him, leaving a balance, with interest, as ascertained by the jury, amounting to $920.00 The plaintiff's proof undoubtedly sustained the plaintiff's contentions, and the only question presented for the court is as to whether as to...
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