Chapman v. J.W. Beltz & Sons Co.

• Decision Date: 14 April 1900
• Citation: 35 S.E. 1013,48 W.Va. 1
• Parties: CHAPMAN v. J. W. BELTZ & SONS CO.
• Court: West Virginia Supreme Court

35 S.E. 1013

48 W.Va. 1

CHAPMAN v. J. W. BELTZ & SONS CO.

Supreme Court of Appeals of West Virginia.

April 14, 1900

Syllabus by the Court.

1. The J. W. B. & S. Co. makes the following proposition in writing "Wheeling, W. Va., Dec. 29, 1894. Mess. Franzheim Giesey & Faris, City--Gentlemen: We propose to build store building for W. H. Chapman & Sons, as per plans and specifications prepared at your office, for the sum of six thousand fifty-nine and 00/100 dollars ($6,059.00). If addition in rear is left off, for the sum of five thousand five hundred and thirty-two and 00 /100 dollars ($5,532.00). Respectfully submitted. J. W. Beltz & Sons Co.,"--which proposition was accepted verbally by C., under the first clause, for $6,059. The work to be done was remodeling and rebuilding a house, using some of the old walls in the erection of the building. After a large part of the work had been performed, and before completion of the building, on the 9th day of April, 1895, the building, without fault of the J W. B. & S. Co. or C., collapsed and fell in ruins. On the 13th of April C. notified the J. W. B. & S. Co. that he expected to restore the original part of said building to the condition in which it was when the J. W. B. & S. Co. began the improvements to it, and thereby required the J. W. B. & S. Co., when such restoration should have been completed, to make and complete the said improvements in accordance with the terms of said contract. Two days afterwards, on April 15th, the J. W. B. & S. Co. notified C in writing, that it would insist that there was no obligation upon it to restore or complete the improvements on C.'s said building. Held, that C. had a right to restore the substructure, and require the J. W. B. & S. Co. to complete its contract.

2. The notification in writing of the J. W. B. & S. Co. to C. that it would insist that there was no obligation upon it to restore or complete the improvements on said building was a violation of its contract, which gave C. a cause of action on said contract.

3. It was error to permit evidence to go to the jury, in favor of plaintiff, to prove the cost of removing the debris from the ground after the collapse.

4. When the illegal part of the damages ascertained by the verdict of a jury is clearly distinguishable from the rest, and may be ascertained by the court without assuming the functions of the jury and substituting its judgment for theirs, the court may allow plaintiff to enter a remittitur for such part, and then refuse a new trial.

Error to circuit court, Ohio county; John A. Campbell, Judge.

Action by William H. Chapman against the J. W. Beltz & Sons Company. Judgment for plaintiff, and defendant brings error. Modified and affirmed.

J. J Coniff and J. B. Sommerville, for plaintiff in error.

W. P. Hubbard and Henry M. Russell, for defendant in error.

McWHORTER, P.

William H. Chapman filed his declaration in assumpsit at August rules, 1895, in the circuit court of Ohio county, against J. W. Beltz & Sons Company, with which declaration plaintiff filed the following bill of particulars:

J. W. Beltz & Sons Company to William H. Chapman, Dr.

1895.
March 23.	To amount advanced upon contract	$2,000 00
July 1.	To labor in removing wreckage from fallen building	245 00
July 1.	To damage from being deprived of use of land for six months	600 00
		---------
		$2,845 00

Interest will be claimed on each item from its date.

On September 4, 1895, defendant appeared and demurred to the declaration and to each count thereof. Afterwards, on the 20th of November, the demurrer, being argued, was overruled, and the defendant pleaded the general issue, and asked and obtained leave to tender for filing proper special pleas by the 30th of November, on which day defendant filed an account of set-off, and tendered several special pleas in writing, to the filing of each of which plaintiff objected on the ground that it is not sufficient in law, which objections, being argued, were sustained by the court, and said pleas rejected, to which ruling of the court defendant excepted, and tendered its bills of exceptions, numbered 1 to 7, inclusive, which were signed and made part of the record. And on the 10th of February, 1896, a jury was impaneled and duly sworn to try the issue, and on March 10th returned a verdict for plaintiff for $2,360.67 damages, the aggregate of principal and interest to that date, when defendant moved the court to set aside the verdict of the jury and grant a new trial, and also moved in arrest of judgment, which motions the court took under advisement; and on the 23d of May, 1896, defendant filed assignments in writing of its grounds in support of said motions, which assignments are substantially the same as those contained in its petition for writ of error, and also filed the separate affidavits of Philip Neuhart and Earl Barr in support thereof; and said motions, being argued, were overruled, and judgment entered on said verdict, to all of which rulings of the court defendant excepted. The following are the affidavits of Neuhart and Barr, referred to as filed, and also the following agreement signed by counsel touching the same matter:

"Earl Barr, after being duly sworn, upon oath says that he was page of the court in which the case of W. H. Chapman v. J. W. Beltz & Sons Co. was tried at the last term of the circuit court of Ohio county; that while the jury in that case was in its room, trying to reach a verdict, and the day before it rendered its verdict in the case, one of the jurors in the case, Isaac Simms, came out of the jury room, and was then intoxicated, and staggered in the presence of the affiant and several other persons, and looked like a drunken man."

"Philip Neuhart, being duly sworn, says that he was one of the janitors of the court house in which the case of W. H. Chapman v. J. W. Beltz & Sons Co. was tried at the last term of the circuit court of Ohio county; that, after the jury in that case had gone to its room, and had been out for a day or so, and the day before it returned its verdict into court, he saw one of the jurors, whose name was Isaac Simms, out in the hall, near the jury room, in a state of intoxication. The juror was plainly intoxicated, for he staggered in the presence of the affiant, and his appearance was that of a drunken man. At the time last named the jury was in its room for the purpose of considering its verdict. While the jury was trying to reach a verdict in its room, just across the hall of the court building, in the water-closet that had been used frequently by the jury, affiant found eight empty beer bottles, and a quart bottle that had had whisky in it."

"It is agreed by the parties that the facts relating to the conduct of the juror Isaac Simms, in addition to those stated in the affidavits of Earl Barr and Philip Neuhart, are as follows: While the jury were considering their verdict the fact that said Simms was intoxicated was brought to the attention of the judge of the court, as well as to the attention of counsel on both sides. With the assent of the counsel on both sides of the case, the jury was adjourned over until the following day, when the said Simms appeared apparently sober, and, with the other jurors, was sent to the jury room. He continued sober, so far as could be ascertained, until the jury brought in its verdict as in the record is set forth. At no time prior to the bringing in of the verdict was any objection or motion of any kind, based on the conduct of the said Simms, made by either party to the case. It is further agreed that these facts may be considered by the court on the motion for a new trial made by the defendant, in like manner as though proved by affidavits."

Bill of exceptions No. 1: "Be it remembered that during the trial of the above-entitled cause the defendant asked the witness J. R. Butts the following question: 'Suppose that, under the circumstances and conditions named to you in the thirtieth question, when the front wall of the Chapman building was completed to a point about halfway between the third and fourth stories, and the girders and other supports of the rear wall, which was not to be of brick, but of glass had been placed in position, and the party wall had been built to about the top of the fifth story; the first floor had been relaid with new boards, and the second and third floors had been laid, and the timbers and sheeting of the new roof were in position; and while the old roof was still on the building, near the place where the fourth floor was to be, the Hutchinson building should suddenly separate from the Chapman building, and move southward for a short distance, and then the upper portion of the Hutchinson building should come back and sink in, and the Chapman building should also fall. What, in your opinion, would be the cause of the fall of the buildings?' To the asking of which question the plaintiff objected, and the court sustained said objection, and refused to allow said question to be answered, to which action of the court the defendant then and there excepted. The defendant, to prove its set-off in said cause, at the trial thereof made the following offer: 'Defendant offers to prove that the following articles before the time of the collapse of the Chapman building had been got ready and prepared for use in said Chapman building, which were still at defendant's place of business, in pursuance of the contract between the plaintiff and the defendant: 4 circular head box frames and sash; 2 lights, 30x36, to the value of $28; 4 blank frames, 9-inch wall, and sash; 1 light, 36x70, valued at $16; 3 box frames and sash; 4 light, 28x40, 13-inch wall, value of $18; 3 box...