Cochran v. Craig S.

• Decision Date: 22 March 1921
• Docket Number: No. 4175.,4175.
• Citation: 88 W.Va. 281
• Court: West Virginia Supreme Court
• Parties: Robert Cochran v. George F. Craig et als.

88 W.Va. 281

Robert Cochran

v.George F. Craig et als.

No. 4175.

Supreme Court of Appeals of West Virginia.

Submitted March 15, 1921.

Decided March 22, 1921.

1. Trial Motion to Strike Out Evidence, Part of Which Was Admissible, Properly Denied.

Motions made in the progress of a trial involving several issues, to strike out certain portions of relevant, material and probative evidence, appreciably tending to maintain some of the issues on the part of the adverse party, oh the ground of its insufficiency for such purpose, are properly overruled. (p. 295).

2. Same Court Cannot Be Required to Test Sufficiency of Evidence of Opposite Party Piecemeal.

A party to a trial before a jury has no right to require the court to pass upon or test the sufficiency of the evidence of the opposite party, by piecemeal, unless, perhaps, in a case in which the evidence constituting the subject matter of the motion to strike out or exclude, is the only evidence tending to prove his opponent's case and is clearly insufficient. Ordinarily, he can require a judicial test of the sufficiency of evidence, only by a motion to exclude all of it, a demurrer to evidence or a motion for a new trial, made after verdict. (p. 295).

3. Same Introduction of Evidence by Defendant Waiver of Errors in Overruling Motion to Exclude Plaintiff's Evidence.

If, after the overruling of a motion to exclude the plaintiff's evidence, interposed at the conclusion of the introduction thereof, the defendant introduces his evidence, he thereby waives the error in the ruling, if any, and cannot have a review thereof in the appellate court. (p. 296).

4. Assumpsit, Action of Proof Sustaining Substantial Portion of Estimated Cost Sued for Admissible.

In an action to recover a sum of money equal to what certain work would have cost, if performed, upon the hypothe sis of an agreement to pay such sum, proof of a substantial portion of such estimated cost is admissible, notwithstanding its insufficiency to establish the full or exact amount thereof, and the inability of the plaintiff to do so by other evidence. (p. 296).

5, Pleading Parti/ Claiming Alternative Right of Recovery May Assert Both Claims in Same Action.

A party claiming an alternative right of recovery may assert and prosecute both claims in the same action, leaving it to the court and jury to determine which he is entitled to, if either, and proof of one of them constitutes no abandonment of the other. (p. 296).

6. Estoppel Representation That Claim in Action Amounts to Less Than That Sued for Not An Estoppel.

A representation that a claim in action amounts to a certain sum less than that sued for, not acted upon in any way, is not an estoppel. It is mere evidence to be taken by the jury for what it is worth. (p. 296).

7 Contracts Recovery Under quantum Meruit Admissible Under Declaration Containing Common Counts As Well As Special Counts.

If a declaration contains the common counts as well as a special count based upon an agreement therein alleged, evidence tending to prove a right of recovery on a quantum meruit is admissible, notwithstanding reliance in the trial upon evidence tending to prove the agreement alleged. (p. 297).

8. Evidence Opinion As to Value or Quantity Admissible if Witness Has More Knowledge of Subject Than Jurors.

To make the opinion of a witness, as to value or quantity, admissible in evidence, he need not be qualified in the highest degree, nor in any particular degree. It suffices that he has more knowledge of the subject matter than jurors ordinarily have. (p. 297).

9. Same Plaintiff May Testify He Would Not Have Made Verbal Contract if He Had Not Understood it Imposed Certain Obligations.

A plaintiff in an action to recover on a verbal contract may testify that he would not have made it, if he had not understood it imposed a certain obligation upon the defendant. (p. 297).

10. Trial Instructions Authorizing Jury to Ignore Defendant's Counterclaim Erroneous.

An instruction given in an action in which the defendant has asserted a claim against the plaintiff, by way of recoupment or set-off, supported by evidence and exceeding the amount of the demand of the plaintiff, in such terms as require a finding in favor of the later, if the jury believe his demand to be well founded, is erroneous and presumptively prejudicial, because it authorizes the jury to ignore the defendant's claim, in arriving at their verdict. (p. 299).

11. New Tkial Trial When Evidence Sustains Verdict for Plain tiff, Directions of Verdict for Defendant and Motion Set Aside Properly Denied.

When the evidence adduced in a trial, considered as a whole, is sufficient to sustain a verdict for the plaintiff, requests for peremptory instructions to find for the defendant and a motion to set aside a verdict for the plaintiff, are properly denied and overruled. (p. 298).

12. Logs and Logging Recovery of Extra Compensation Under Logging Contract Because of Change in Method Held Proper.

In an action to recover extra compensation for work done under a logging contract, upon the theory of a radical change in the method of doing the work, made by the contractee, after the commencement thereof, imposing very much greater cost of performance upon the contractor than would have been required if the work had been done as contemplated, and a modification of the contract so as to provide for such compensation, in view of such change, there may be recovery of the additional expense occasioned thereby, if the evidence is such as warrants a finding that the contract was made and subsequently altered agreeably to the theory and claim of the plaintiff, even though there was no agreement to pay for such extra cost, provided the declaration contains an appropriate common count. (p. 300).

13. Same Evidence Sustaining Finding As Basis for Recovery of Increased Cost Under Modified Logging Contract.

If, in such case, the contract was verbal and adopted for the purposes of the enterprise, subject to slight modifications, a prior written contract made between the parties for the purposes of a like enterprise fully executed and terminated, by the terms of which the contractor was required to deliver the logs within 75 feet of railroads to be constructed by the contractee, and under which, evidence adduced tends to prove, he had constructed such railroads into the timber, as were reasonably necessary for convenient and economical stocking thereof; and there is evidence strongly tending to prove intent and purpose on his part, at the date of the making of the new contract, to construct a railroad clearly necessary for the purposes of the enterprise, in such sense, known to the contractor at the time, and his subsequent abandonment thereof, in consequence of which the contractor, in the discharge of his obligation to stock the timber, was compelled to log it by a route and to a point not contemplated, at greatly increased cost, the jury are justified in finding that the contract imposed duty upon the contractee to build such railroad, and that, in accepting performance in a manner different from that contemplated and occasioned by his change of plans, he incurred an obligation to pay the resultant increased cost. (p. 300).

14. Exceptions, Bill of Paper Held a Bill of Exceptions Sufficient As to Form.

A paper bearing the style of a case, entitled "Defendant's Bill of Exceptions," containing the evidence in such case, motions made and passed upon and what purport to be instructions, bearing the initials of the trial judge and notations of objections, rulings and exceptions, and certified by the judge, under the style of the case, as the bill of exceptions of the defendants therein, and made a part of the record of the case, by a vacation order, is a sufficient bill of exceptions. (p. 298).

15. Same Recitals Held to Make Instructions Incorporated in Bill Part Thereof.

This recital in such certificate: "being the exceptions to the rulings and actions of the court in the progress of said trial, as shown above and above set out;" makes the instructions so incorporated in such bill of exceptions, parts thereof.

(p. 298).

Error to Circuit Court, Pocahontas County. Action by Robert Cochran against George F. Craig and others. Judgment for plaintiff, and defendants bring error.

Reversed and remanded.

W. A. Bratton, and Price, Smith, Spilman & Clay, for plaintiffs in error.

F. R. Hill and L. M. McClintic, for defendant in error.

Popfenbarger, Judge:

The judgment for $8,537.39, under review on this writ of error, was recovered in an action of assumpsit, as part of an amount claimed under an alleged modification of a logging contract fully performed by both parties, the work having been fully done and fully paid for, except in so far as this claim has been asserted upon the theory of a modification of the contract, allowing increased compensation to the contractor. In his declaration, the plaintiff demanded $10,-636.84, and the defendants interposed a claim for $18,481.48, by way of recoupment and set-off. The basis of this counter claim is an alleged overpayment for the work done, at the contract price. Nine of the fifteen assignments of error are based upon the overruling of motions of the defendants to strike out evidence and their objections to admission of evidence. Some of these, as well as the thirteenth and fourteenth assignments, the former based upon the rejection of peremptory instructions asked for by the defendants and the latter, upon the motion to set aside the verdict, involve the sufficiency of evidence. The twelfth relates to rulings upon instructions given.

For the purposes of the stocking of the timber involved here, which was taken from a 3, 500 acre tract of land known as the "Clark and McCullough Tract," and amounted to about 33, 833, 361 feet, the parties verbally agreed, April 2, 1915, or near that date, that a written contract between them dated, April 1, 1912, under which the plaintiff had stocked the remaining portion of timber on a 10,...