Dimmack v. Wheeling Traction Co.

Decision Date07 November 1905
Citation52 S.E. 101,58 W.Va. 226
CourtWest Virginia Supreme Court

Submitted June 10, 1905.

Syllabus by the Court.

Where a demurrer was interposed and not passed upon by the lower court, it will be treated by this court as having been overruled.

Upon a trial of an action where a corporation is a party, a juror is not disqualified to serve on the ground alone that he is in the employment of a stockholder or manager of such corporation.

It is not error to refuse to allow questions to be asked a juror when the sole purpose of such questions is to aid in the exercise of the right of peremptory challenge.

Where a verbal contract for the sale of personal property is made and a contest arises as to what property was embraced by the terms thereof, it is competent to prove the price paid therefor and the value of all the property claimed to have been purchased.

If a verbal contract for the sale of personal property has been fully consummated, and subsequently thereto, and in compliance with the terms thereof, payment of the purchase price is made by check, taking a receipt therefor, no language or recitals contained in the check or receipt can be so construed as to alter the terms thereof; but where there is a contest as to what property was really embraced by the terms of the contract, and the check and receipt contain recitals defining the kind and quantity of property sold they are competent evidence as tending to show what property was included in the sale.

Error to Circuit Court, Ohio County.

Action by Alfred Dimmack against the Wheeling Traction Company. There was judgment for defendant, and plaintiff brings error. Affirmed.

White & Allen, for plaintiff in error.

Erskine & Allison, for defendant in error.


This is an action of detinue, instituted by the plaintiff, Alfred Dimmack, in the circuit court of Ohio county, against the Wheeling Traction Company, for the recovery of the possession of certain railway rails and steel fittings. Judgment below was given for the defendant, to which the plaintiff applied for and obtained a writ of error and supersedeas.

The plaintiff purchased the property which he claims in this action from J. G. Crawford, who claims to have purchased the same from the defendant. Therefore the plaintiff's right to recover depends upon whether or not Crawford did make such purchase. The defendant had a lease on a baseball park ground on Wheeling Island, in the city of Wheeling, which was about to expire, and this controversy grows out of a sale by the defendant to Crawford of certain property which it had upon said baseball park ground. The property which it had upon this ground was such as fences, grand stand, buildings, etc and, also, it had stored there the steel rails and fittings in question. The defendant claims to have sold Crawford all the baseball ground materials, but that the rails and fittings were not included in the sale, while Crawford claims to have purchased all the property which the defendant had upon the ground, including the rails and fittings.

The plaintiff's first assignment of error is that the demurrer to his declaration was not disposed of. The record does not show that the demurrer was passed upon, but the plea of non detinet was filed, and the case tried upon its merits. Therefore the demurrer will be treated as having been overruled. The rule is that, when the record does not disclose what the ruling of the court below was upon demurrer, this court will consider that the demurrer was overruled. I cannot see how the plaintiff can complain of the action of the court in not passing upon a demurrer to his declaration. The defendant makes no point in regard to it, and does not claim in this court that the declaration is not good. It is claimed that the court erred in refusing to permit the plaintiff, upon the impaneling of the jury, to inquire of them whether or not they were employés of the stockholders or managers of the defendant corporation. The fact that a juror is in the employment of a stockholder of a corporation does not disqualify him to serve, and is therefore no ground of challenge for cause; and, this being so, there is no duty resting upon the court to go into an inquisition, the sole purpose of which is to aid the defendant in determining whether he will challenge a juror peremptorily. Therefore the court committed no error in this respect.

The remaining assignments of error are numerous, but a treatment of them separately is entirely unnecessary, as a great many of them are tested by the same rules and principles and are somewhat cumulative in effect. Therefore they can be treated under three heads:

First. Did the court err in the admission or rejection of testimony? The fact that a verbal contract was made, that it was made at a certain time and place, that Crawford agreed to pay $200 for the materials, that a few days were given within which to make payment, and that he did make payment through Robinson and by his check, and took a receipt therefor is all agreed and the only question is whether the steel rails and fittings were embraced in the terms of the contract, and upon this question there is a direct conflict in the evidence. Therefore, in arriving at the terms of the contract, it is necessary to look at all the facts and circumstances surrounding the parties, and which led to its consummation, and any evidence, however slight, that would in any way cast light upon the transaction is admissible. Complaint is made that the court permitted the defendant to prove the weight of the rails and fittings, and that they would sell in the market for so much per ton, and that Dimmack had hauled away a quantity of the rails before his act of so doing was discovered by the traction company, and that Shirley, the defendant's agent, was allowed to testify to the market value of the rails in February and April, 1901, and that the defendant company in October, 1900, sold some other old rails at $19 per ton. This evidence was plainly...

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