Cobb v. Glenn Boom & Lumber Co.
| Decision Date | 31 January 1905 |
| Citation | 49 S.E. 1005,57 W.Va. 49 |
| Parties | COBB v. GLENN BOOM & LUMBER CO. |
| Court | West Virginia Supreme Court |
Submitted January 12, 1905.
Syllabus by the Court.
1. On a motion to exclude all the plaintiff's evidence and direct a verdict for the defendant, the court should be guided by what its action would be if the case were submitted to the jury, and they should find a verdict in favor of the plaintiff upon such evidence. If it would be the duty of the court to set aside the verdict of the jury because without sufficient evidence, then the court should sustain the motion to exclude, and instruct the jury to find for the defendant. But if, on the other hand, the evidence is such that, under the law, the court should refuse to set aside the verdict the motion to exclude the evidence should be overruled.
2. A contract for the sale of real estate may be made by means of telegraphic communications, and if it can be collected from the telegrams referring to one another and directly related to one another, so that it may be fairly said to constitute one paper relating to the contract, and if the telegrams are signed by the parties or their agents, and it appears by them that the minds of the parties met, and that the terms of the contract, by referring to the telegrams, can be made to clearly appear, it is a sufficient compliance with the statute which requires contracts for the sale of real estate to be "in writing and signed by the party to be charged thereby, or his agent."
3. The secretary of a corporation has no power, merely as such secretary, to make contracts binding the corporation; and if the secretary, by virtue of his office, makes a contract selling the real estate belonging to the corporation, the contract is not enforceable against the corporation, unless it appears that the secretary had express authority to make such contract, or had been clothed with apparent authority by the corporation to do so, or that the corporation had acquiesced in or ratified the sale.
4. Where a person deals with an agent, it is his duty to ascertain the extent of his agency. He deals with him at his own risk. The law presumes him to know the extent of the agent's power, and, if the agent exceeds his authority the contract will not bind the principal, but only the agent. Rosendorf v. Poling, 37 S.E. 555, 48 W.Va. 621.
5. The message sent to a telegraph office, to be transmitted in reply to one received, is the original, and not the message received at the place to which it is transmitted. The latter must be considered as a copy, and carries with it none of the qualities of primary evidence and cannot be admitted until the foundation is laid for the admission of secondary evidence, and then can only be admitted upon proof that the copy offered is a correct transcript of a message actually authorized by the party sought to be affected by its contents. But even where the original is produced, its authenticity must be established, and this either by proof of the handwriting, or by other proof establishing its genuineness.
Error from Circuit Court, Tucker County; John Homer Holt, Judge.
Action by W. H. Cobb against the Glenn Boom & Lumber Company. Judgment for defendant, and plaintiff brings error. Affirmed.
W. B. Maxwell and J. P. Scott, for plaintiff in error.
A. Jay Valentine and L. Hansford, for defendant in error.
This is an action of assumpsit brought in the circuit court of Tucker county, wherein the plaintiff claims that he entered into an executory contract with the defendant, by which he purchased from it 800 acres of land lying in Randolph county, at $15 per acre, and that after the making of said contract the defendant sold the timber on said land to another person, thereby rendering it impossible for it to carry out its contract with him, and claiming damages in the sum of $5,000. The defendant pleaded non assumpsit, and filed an affidavit denying that it signed or authorized the signing of the telegrams in the declaration mentioned, and upon this issue the case was tried. After the plaintiff introduced all his evidence, the court, upon motion of the defendant, excluded it from the jury, and instructed them to find a verdict in favor of the defendant. The jury returned a verdict as instructed, and the court rendered judgment thereon, and it is this judgment that we are now asked to review.
The right of the courts in this state to exclude the evidence from the jury, and to peremptorily instruct a verdict in favor of the defendant, has been for many years well settled; but it was not until the decision in the case of Ketterman v. Dry Fork Railroad Co., 48 W.Va. 606, 37 S.E. 683, that a well-defined and proper test was made for the guidance of the courts, for the decisions previous thereto, while they all recognized the well-settled practice to be that the defendant had the right to make such motion, and the province and duty of the court to sustain it in any proper case, yet the difficulty has been when such a motion should prevail, and by what rule the court is to be guided. Judge Green holds, in the case of Franklin v. Geho, 30 W.Va. 34, 3 S.E. 168, that a motion to exclude all the plaintiff's evidence and direct a verdict for the defendant is equivalent to a demurrer to the evidence; and Judge Holt, in the case of Aqua Impt. Co. v. Standard Fire Ins. Co., 34 W.Va. 764, 12 S.E. 771, holds that a motion to exclude or strike out evidence is not in all cases the equivalent of a demurrer to the evidence, and that it should not, without modification, be permitted to supersede and replace such demurrer; and then, again, in the same book (the case of Bridge Co. v. Bridge Co., 34 W.Va. 156, 11 S.E. 1009), Judge Lucas holds that a motion to exclude the plaintiff's evidence ought to be overruled where the court cannot grant the same without usurping the functions of the jury. And then, in Carrico v. W.Va. Central & Pa. Ry. Co., 35 W.Va. 389, 14 S.E. 12, it is held that a motion to exclude the plaintiff's evidence on the ground that it is insufficient to warrant a verdict should not be granted if there be any evidence which tends in any degree, however slight, to prove the plaintiff's case; and in the case of Henry v. Ohio River R. Co., 40 W.Va. 235, 21 S.E. 863, it is laid down, in the ninth point of the syllabus, "Whenever the evidence tends in a fairly appreciable degree to sustain the plaintiff's action, the court must not strike out the evidence or direct a verdict for the defendant." Also in Guinn v. Bowers, 44 W.Va. 507, 29 S.E. 1027, the rule is laid down to be that a motion to exclude plaintiff's evidence on the ground that it is insufficient to warrant a verdict will not be granted if there be any evidence which tends, in any degree, however slight, to prove his case. Therefore it will be seen, from these various decisions, that in some it is held that the motion to exclude should be treated as a demurrer to the plaintiff's evidence; and in the case of Aqua Impt. Co. v. Standard Fire Ins. Co., supra, it is held that in all cases it is not the equivalent of a demurrer to the evidence, and then, in others, that if there be any evidence tending in any degree, however slight it may be, to make out the plaintiff's case, the motion should be overruled; and then, again, we find that in some it is said that, if there is any evidence tending in any appreciable degree to establish the plaintiff's contentions, the court should not exclude the evidence. The question as to when evidence tends in any appreciable degree to support the plaintiff's claim is very difficult to determine. What is meant by ""appreciable degree," in passing upon questions of this kind, is hard to define; and then to say that a court should not exclude the evidence because there is some evidence, no matter how slight it may be, to make out the plaintiff's case, means that the court shall submit many cases to the jury for its decision, when, at the same time, it is perfectly apparent that if the jury should find a verdict for the plaintiff the court will be compelled to set it aside because contrary to the evidence. It seems contrary to good reason to say that when the plaintiff has introduced all of his evidence, and from that evidence the court could not sustain a verdict in his favor, the court should overrule a motion to exclude the evidence, and continue the trial of a case without merit. The proper test is that when a motion is made to exclude the plaintiff's evidence the court should be guided by what its ruling would be, should that evidence be submitted to the jury, and upon it the jury find a verdict in favor of the plaintiff. If it would be the duty of the court to set aside the verdict because manifestly contrary to the evidence, then it is the duty of the court to exclude it from the consideration of the jury, and instruct them to find in favor of the defendant. This question was discussed by Judge Brannon in delivering the opinion of the court in the case of Ketterman v. R. R. Co., and, while he did not expressly lay this rule down to be the true test, yet he substantially held it to be so.
We look to the evidence to see whether or not the court did right in excluding the plaintiff's evidence. To establish his case, plaintiff relies upon certain letters and telegraphic communications, which, in order to get a more complete understanding of the case, are here given in extenso:
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