Bloyd v. M. & J. Pollock.

• Decision Date: 21 November 1885
• Citation: 27 W.Va. 75
• Court: West Virginia Supreme Court
• Parties: Bloyd v. M. & J. Pollock.

27 W.Va. 75

Bloyd

v.M. & J. Pollock.

Supreme Court of Appeals of West Virginia.

Submitted June 5, 1884.

Decided November 21, 1885.

1. If a vendor sells goods to a vendee to be delivered at the depot in

a certain city, or to be delivered in the cars at the depot in a certain city, the goods remain the goods of the vendor when shipped by railroad, * till they arrive at the depot in such city, and till then they are at the risk of the vendor. But upon their arrival at the depot in such city without being unloaded and without any notice of their arrival at the depot, they at once become the property of the vendee and are thenceforth at his risk. (p. 128.)

2. A court ought not to grant an instruction to a jury, which is irrele-

vant or tends to mislead them, and therefore a court ought not to grant an instruction to a jury, which is based on an hypothesis in reference to the facts, which there is no evidence tending to sustain; nor should the court grant an instruction which is based on an hypothesis, which there is some evidence tending to support, if such evidence is so weak, that it would be the duty of the court to set aside the verdict as contrary to the weight of evidence, if it was based solely on the assumption that such hypothesis was in fact true. (p. 129.)

3. An appellate court will not reverse the judgment of a court below, because it permitted counsel to read law from the books or reports against the objection of the other side, when such law was read before the granting of any instructions, nor if it was read after the granting of such instructions, if the law so read was in accord with the instructions. And though it is the duty of the court to prevent the reading of law by counsel, which conflicts with the instructions of the court, Qucere: If the court should violate its duty in that respect and permit such law to be read against the objection of the other side, would an appellate court in any case for such reason award a new trial? (p. 142.)

Caldwell $ Caldwell for plaintiffs in error.

Ewing, Melvin$ Riley for defendant in error.

Green, Judge:

This was an action of assumpsit brought by Stephen L. Bloyd against Mortimer Pollock and Julius Pollock, millers, doing business as M. & J. Pollock, to recover damages for 487 bushels of wheat sold and delivered by the plaintiff to the defendants on February 5, 1884, at $1.05 per bushel amounting to $511.35 less the freight on the same $20.00, the balance due being $491.35 with interest from February 5, 1884. The suit was instituted in the circuit court of Ohio county. The declaration was filed at the March rules, 1884, and the damages laid in it were $800.00. It contained only the common counts for work and labor, for goods, wares and merchandise sold and delivered by the plaintiff to the defendants at their special instance and request and for money lent and advanced and for monies had.and received by the defendants for the use of the plaintiff with the general indebitatus assumpsit count. With this declaration was filed a bill of particulars setting out the demand of the plaintiff in detail as above stated. At the next term of said court on March 12, 1884, the defendants appeared and pleaded not guilty to this declaration, and issue was joined thereupon, which issue was tried by a jury, who were sworn on November 28, 1884, and found a verdict for the plaintiff on December 1, 1884, assessing his damages at $515.00. Thereupon the defendants moved the court to set aside this verdict and grant them a new trial; which motion was acted upon on January 3, 1885, when the following entry was made:

"This day came the parties, ' by their attorneys, and the motion of the defendants heretofore made to set aside the verdict of the jury herein and grant them a new trial coming on to be heard, the defendants assigned as the grounds of said motion that the verdict of the jury was contrary to the law and evidence, misdirection of the jury: in giving each of the instructions respectively to the jury on motion of the plaintiffs, refusal to give each of the instructions refused to be given to the jury on motion of the defendants, and the arguments of counsel were fully heard and taken under advisement by the court."

This motion was finally acted upon by the court on January 9, 1885, when the following judgment was rendered and made:

"This day came the parties, by their attorneys, and the court having maturely considered the motion of the defendants heretofore made to set aside the verdict of the jury herein and grant them a new trial, doth overrule said motion; to which ruling and judgment of the court overruling the defendants' said motion to set aside the verdict of the jury and grant them a new trial herein, the defendants, by their attorneys, except. Whereupon, it is considered by the court that the plaintiff S. L. Bloyd recover against the defendants M. k J. Pollock the sum of $515.00, the damages assessed by the jury aforesaid, with interest, thereon from December 1, 1884, until payment, and his costs about the prosecution of his suit in this behalf expended; to which last mentioned judgment of the court the defendants, by their attorneys, except.

"And on motion of the defendants, and with the consent of the plaintiff, it is ordered that bills of exceptions to any and all rulings or judgment of the court heretofore excepted to in this action, may be offered, signed, sealed and filed in the clerk's office within forty days after the end of the present term with the same effect and to be considered by the court as if offered, signed, sealed and filed in court during the present term thereof."

In accordance with this consent-order bills of exceptions were formally made out, signed and sealed within said forty days in said clerk's office. And on February 7, 1885, the court entered on the record-book in open court an order recognizing that the said bills of exceptions had been so tiled in said clerk's office, duly signed and sealed and ordered to be made a part of the record in this action. The bill of exception sets out all the evidence which was before the jury whether given by the plaintiff or defendants. This evidence was to some extent contradictory. I shall in order to a proper understanding of the case state not only all the facts which I regard as material, and which T think were fully established, but will set forth some of the evidence, which 1 deem immaterial, and some of the conflicting and contradictory evidence. I deem it necessary to state the case thus fully, in order that the instructions, which were given or refused by the court below, as well as the modification to certain instructions, which were required to be made by the court, and the grounds, on which the court below acted in admitting certain evidence, which was objected to by the defendants' counsel, may be the more fully comprehended. The case as it was thus presented to the jury, as shown by the evidence certified, was when stated in this manner substantially as follows:

The plaintiff had for a number ot years been engaged in dealing in wheat at a store located on the Baltimore and Ohio Railroad at astation on said railroad located about twenty-two miles from Wheeling known as Glen Easton. The defendants during this time were engaged in milling in Wheeling, where their mill is located. The plaintiff very frequently during these several years probably some twenty times sold to the defendants as millers car loads of wheat at certain agreed prices per bushel, the wheat to be delivered by the plaintiff on the cars at the depot in Wheeling, the freight to be paid by the defendants and to be deducted from the price agreed to be paid to the plaintiff. These various contracts for the sale of car-loads of wheat were exactly the same, except that the price per bushel of the wheat differed, being in each case fixed by the agreement of the parties. Under all these several parol contracts, probably twenty in number, when the wheat so shipped by the plaintiff to the defendants arrived at the depot in Wheeling, the cars containing it were by the agents of the company placed upon a side track close to the depot, where it was most convenient to the defendants to unload said cars, and they were there invariably unloaded by the defendants.

The defendants testified that they never did unload and take possession of this wheat at any time, till the agents of the company at Wheeling had first presented to them a bill for the freight, and until they had first paid the fireight, as the company never would deliver anything to them till they had first paid the freight.

But agents of the company testified that it was not true, that the company never did deliver anything to the defendants, till they first paid the freight; that the habit of the agents of the company was sometimes to notify merchants and others, including the defendants, of the arrival of goods by sending them the bill for the freight on the goods, but sometimes merchants and others, including the defendants, ascertained that their goods had arrived by their drivers making enquiry at the depot. If the parties were perfectly reliable and responsible, their goods were delivered before the freight was paid, or before the freight-bill was made out or presented. They had not required the defendants always to pay their freight on what was sent them before they hauled the wheat away. Most generally the defendants, when they received a carload of wheat, unloaded it from the car and took the wheat away, before they paid the freight, and before the freight-bill was made out and presented to them, or they were otherwise formally notified of the arrival of the wheat. This was allowed because they were regarded as perfectly responsible, and as the cars would be in the way sometimes, if allowed to stand on the switch till the manifest, from which the freight-bill was made out, could be examined. And till such examination and correction was made, the freight-bill was...