Cobb v. Dunlevie

• Decision Date: 28 January 1908
• Citation: 60 S.E. 384,63 W.Va. 398
• Parties: COBB v. DUNLEVIE.
• Court: West Virginia Supreme Court

60 S.E. 384

63 W.Va. 398

COBB v. DUNLEVIE.

Supreme Court of Appeals of West Virginia.

January 28, 1908

Submitted January 17, 1908.

Syllabus by the Court.

A letter which is a link in the chain of negotiations between the principals to a contract of sale is admissible as part of the res gestae, regardless of the fact that it contains matters of hearsay.

[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence §§ 297-310.]

Where such letter is offered in evidence, and contains proper matter to go in evidence, objection on the ground that it contains other matter of hearsay should be specific otherwise the objection will not be ground for its exclusion.

[Ed Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 194-210.]

The record of a deed or other instrument, or a certified copy therefrom, is not admissible in evidence against a party thereto as to whom the same has not been lawfully admitted to record as provided by sections 2 and 3, c. 73, Code 1899 [Code 1906, §§ 3075, 3076].

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1279-1282.]

In the trial of an action by a real estate broker to recover commissions on a sale of real estate, in which the evidence is conflicting as to whether the parties had stipulated for the rate of compensation, evidence of a prior contract between the same parties for a sale of the same property and of the compensation therein agreed to be paid by way of commissions is competent upon the question of compensation involved.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Brokers, § 109.]

Section 12, c. 131, Code 1899 [Code 1906, § 3982], respecting the carrying from the bar by the jury of depositions or other papers read in evidence, leaves the subject in the sound discretion of the court, and, unless such discretion is clearly abused, the action of the court will not constitute reversible error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3844; vol. 46, Trial, §§ 732-737.]

An instruction for plaintiff, on his theory of the case, which does not correctly state the terms of the contract alleged and proven, and on which he sues, or limits the theory of the defense to a narrower scope than that covered by the evidence, if given, will constitute reversible error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 527.]

A bad instruction will not be cured by a good one inconsistent therewith.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 703-718.]

In an action of assumpsit for brokerage commissions, an instruction which assumes the absence of a special contract and the existence of an established custom respecting such commissions, with reference to which the parties must be presumed to have contracted, is erroneous, the fact of the existence of such custom being one which should be submitted to the jury under proper instructions.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 420-435.]

An instruction which tells the jury that, if they believe under all the evidence any witness has knowingly and willfully testified falsely as to any material fact in the case, they may disregard the whole of his testimony, or give it such weight on other points as they may think it entitled to, and tells them that they are the exclusive judges of the weight of the testimony, is proper.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 539-551.]

Where one uses the mail to communicate a proposition, the posting of a letter of acceptance makes the acceptance complete the moment the letter is mailed, unless the offer is so qualified as to require receipt of the letter to constitute acceptance; but, in order to bind the proposer, such acceptance must be unconditional.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 119, 120.]

Points 1 and 2 of the syllabus in Ober v. Stephens, 54 W.Va. 354, 46 S.E. 195, approved.

Error to Circuit Court, Pocahontas County.

Action by W. H. Cobb against E. V. Dunlevie. Judgment for plaintiff. Defendant brings error. Reversed.

Henry Gilmer and Brown, Jackson & Knight, for plaintiff in error.

Price, Osenton & McPeak, and Samuel T. Spears, for defendant in error.

MILLER J.

In assumpsit there was a judgment in favor of the plaintiff on the verdict for $37,653.96. The cause of action was for commissions alleged to be due the plaintiff on a sale of defendant's timber lands and sawmill plant at Dunlevie, W. Va., to the Flint, Irving & Stoner Company, of Pittsburg, at the aggregate price of $726,910.44, pursuant to a contract of employment alleged to have been made with the defendant in February, 1906. The declaration does not allege any agreement as to the rate of commissions, but that the defendant promised to pay a reasonable compensation. The bill of particulars charges the defendant with commissions on the purchase price at the rate of 5 per cent., aggregating $36,345.52, which, with interest from the date of sale, is the sum found by the verdict.

On the trial numerous exceptions were taken to rulings of the court on admission and rejection of evidence, giving and refusing of instructions, and the action of the court on the motion of defendant for a new trial. It was not controverted that the plaintiff had a contract of employment with the defendant to sell the property. This fact was established, not only by the oral testimony, but by correspondence adduced between plaintiff and defendant, substantially as alleged. But the defense was that the plaintiff had not been the procuring cause of the sale, and hence was not entitle to commissions. This was the main issue, and after it, if determined in favor of Cobb, was the question of the amount of his compensation. The plaintiff was a real estate broker at Elkins, and had employed to assist him the firm of Wilson & Shipman, who in turn had employed one P. S. Dunkle to assist them. Dunkle on April 7, 1906, met E. W. Echart, an agent of the purchaser, at Glady, W. Va., and learned that he represented the Flint, Irving & Stoner Company, and was then looking after timber propositions. As a result of this meeting Echart went on the following day with Dunkle to see Wilson, who arranged with Echart to go with him and Dunkle to see the Dunlevie property the following Monday morning. After thus going and see Dunlevie negotiations were concluded in the sale by Dunlevie of his property to Echart's company on April 17, 1906. We have concluded errors were committed in the trial prejudicial to the defendant requiring reversal of the judgment and the awarding of a new trial. The facts will sufficiently appear in the discussion of the assignments of error.

The first error to be noted of which the defendant complains is the refusal to admit in evidence the letter of Flint, Irving & Stoner Company to Echart, their agent, of April 5, 1906 received by him on his arrival at Elkins April 6th. This letter is long; but it, in substance, after telling him that since he left a lumber dealer at Pittsburg, who had been in West Virginia and seen the Dunlevie property and learned it was for sale, had stated that he considered it the finest proposition in the state, but that the dealer referred to did not know negotiations were already pending between Dunlevie and the company, advised Echart that notwithstanding this report he had better follow out the instructions given him before leaving, and then went on to detail the order in which he should visit several properties, and said: "After looking at those several pieces of timber you might run up to Dunlevie and take a look at his proposition, but do not go into the matter of price, terms, etc., as I have had this matter on discussion with him for three or four weeks myself. As I advised you, when there it would be well for you to spend three or four days or more on the timber, so as to grasp every feature of the situation, look over the railroad, the mills, houses, and everything in connection with the operation. You can tell when you get through with the Taylor tract whether it would be advisable to go to Dunlevie first instead of going to Marlinton. We think probably you had better do this, as this does look to me to be better than anything we have heard of, if a satisfactory price can be obtained." It is admitted on behalf of the plaintiff that the portions of this letter giving instructions to Echart as to the lumber operations to be visited by him, and especially that portion in regard to his visiting the Dunlevie property, were pertinent and proper evidence. But the action of the court in ruling it out is intended to be justified, first, upon the ground that the letter was not sufficiently identified; second, that it contained statements and recitals that were inadmissible because hearsay; and, third, that inasmuch as the witnesses Flint and Echart were permitted to testify in regard to Echart's instructions, the rejection of it was not prejudicial. In this we cannot concur. We think the letter was sufficiently identified by the witness Echart. He had previously testified to having received a letter of that date from his company. Subsequently, on being shown the letter in question, and asked to state if it was the one he had spoken of as receiving at Elkins, objection was sustained, and the question not answered, but the letter was offered and rejected. It showed upon its face, when offered, the relevancy of the matter contained therein. The offer of it was equivalent to a statement by counsel of what he proposed to prove by the witness. The letter bore the same date as the one to which he had previously referred. We think this was a sufficient indentification. Nor do we think the objection on the ground of...