Dresser v. Transp. Co.

• Decision Date: 27 July 1875
• Citation: 8 W.Va. 553
• Court: West Virginia Supreme Court
• Parties: WHEELING.Dresser v. Transportation Company.

8 W.Va. 553

WHEELING.Dresser

v.Transportation Company.

Supreme Court of Appeals of West Virginia.

July 27, 1875.

1. In an action at law. where the defendant appears and pleads the

general issue, and the plaintiff introduces all his evidence in chief to the jury, and then rests his case, and the defendant moves the court to exclude the evidence from the jury upon the ground that there is a material variation hetween the declaration and the proof, if, from the whole evidence, it clearly appears to the court that the plaintiff's said evidence fails to support the issue on the part of the plaintitiff, the court should exclude the evidence from the jury. In such case the court should regard the party moving to exclude the evidence in the light of a demurrant, and the party adducing the evidence in the light of a demurree, although there is in fact no demurrer. The court should consider, upon such motion, the plaintiff's evidence with all the favor, and give it all the force and draw therefrom all the inferences, it would he entitled to if there was a demurrer tiled thereto hy the party making the motion to exclude the evidence. And in such ease, if, in the judgment of the court, according to the rules governing demurrers to evidence, the party offering the evidence would, on a demurrer thereto by the opposite party, be entitled to judgment thereon in his favor, then the court should not exclude the evidence from the jury.

2. In an action of assumpsit brought to recover the value of oil

claimed by the plaintiff, (the declaration containing no good counts except the-common counts,) which was in the possession of defendant at the time the action was brought, and which had not been sold or in any way tortiously disposed of by the defendant, and which came into the possession of the defendant as a common carrier, and not wrongfully, it was error in the court below to instruct the jury that if they believed from the evidence that the said oil was the (property of the plaintiff, it was their duty to find a verdict for the plaintiff for the value of the oil, there not being evidence before the jury tending to prove a sale of the oil by the plaintiff to the defendant, but the evidence clearly proving that there had been no such sale, and that the defendant had only refused todeliver the oil to plaintiff on demand, under the peculiar circumstances shown by the evidence, as stated in the opinion of the Court in this cause. In such case, and under such a state of facts, the plaintiff was not entitled to recover the value of the oil upon the common counts for oil sold and delivered to the defendant by the plaintiff, or for money had and received by the defendant for the use of the plaintiff there not being any sufficient and proper special count in the declaration covering the case.

3. In a deed of assignment or conveyance of leases from M. & W. to A. & S., the sixth clause is in these words, viz: ''Also all our right, title and interest of, in and to the engines, boilers, tanks, tubing, derricks and all other fixtures and personal property situate upon and appertaining to the above leasehold interest and well, to us belonging, '' &c. This clause did not pass or convey to A. & S. the oil of M. & W. that was in the oil tanks at said well at the date of said deed, although it was on the leasehold estate, as it did not "appertain to the leasehold interest'' which was conveyed.

Appeal from, and supersedeas to, a judgment of the circuit court of Wood county, rendered on the 2d day of July, 1874, in a suit therein pending between S. R. Dresser, plaintiff, and The West Virginia Transportation Company, defendant. The appeal was allowed on the petition of the defendant. The opinion of the Court contains a statement of the case.

The Hon. Charles S. Lewis, judge of the second judicial circuit, presided at the trial below.

Walter S. Sands for the appellant.

There was no appearance for the appellee.

Haymoxd, President:

This is an action of trespass on the case in assumpsit brought in the circuit court of the county of Wood.

The first count in the declaration alleges that on the loth day of June, 1871, the defendant, in consideration that a certain firm, trading under the name of Wright & McCandless; "had, at their special instance and request," delivered to said defendant, a large quantity of crude, oil, to-wit: fifty barrels of oil in tanks at Prospect, Roth, and Thomas & Dresser wells, they, the said defendants, undertook and faithfully promised to re-deliver to said Wright & McCandless, or their order, said oil on demand; and whereas the said Wright & McCandless did demand and order said oil to be delivered to the plaintiff, to-wit: on the day and year aforesaid; yet the defendant, though often requested to-wit: On the loth day of June, 1871, to re-deliver said oil to the plaintiff as requested by said Wright & McCandless, refused so to do."

The second count is somewhat like the first, except that it does not allege that Wright & McCandless ordered defendant to deliver the goods to plaintiff, and except also it alleges that the defendant failed to deliver the oil to either Wright McCandless or plaintiff.

The third count alleges that defendant was on the loth day of June, 1871, indebted to the plaintiff in the sum of $500, for the price and value of goods and chattels, and crude oil then and there sold, and delivered by the plaintiff to the defendant, at its request, and in $500 for money then and there paid by the plaintiff for the use of the defendant at its request; and in $500 for money received by the defendant for the use of the plaintiff, and in $500 for money found due from defendant to plaintiff, on an account stated between them.

There was no demurrer filed to the declaration, but the defendant appeared to the action and plead non assumpsit, on which issue was joined.

Afterwards on the 1st of July, 1874, a jury was duly selected and sworn to try the issue joined, and the jury found a verdict in favor of plaintiff for $166.52, and on the 2d day of July, 1874, the court rendered judgment upon the verdict of the jury for the amount thereof, and costs in favor of plaintiff against defendant.

During the trial of the cause the defendant took three several bills of exception to opinions and rulings of the court.

By the. first bill of exceptions it appears that the plaintiff proved before the jury that on or about the 1st of June, 1871, the firm of Wright & McCandless, by written contract, not offered in evidence, by plaintiff, sold to George W. Alexander and John A. Steele, all their interest in certain oil wells, known, respectively, as the Thomas & Dresser wells, the Prospect well, and the Roth well, and that at the time of the sale the oil then on hand in tank, at said wells, was not sold; that at the time of the sale, or a day or two afterwards, measurement was bad at the tanks, and the oil therein claimed by Wright & McCandless, was as follows: In the Prospect well, 21.77 barrels of 35° gravity; in the Thomas & Dresser well, 17 barrels, and in the Roth well, 10.24 barrels, of 31° gravity; that the measurement was made by the parties to said sale, none of the defendant's agents being present; that at the time of the sale the said Alexander and Steele and one B. H. Thomas, (who were known as the Alexander Petroleum Company,) took possession of the wells, and retained possession thereof until after the 1st day of July, 1871, pumping oil into the said tanks; that on the loth day of June, 1871, the said firm of Wright & McCandless, delivered to the plaintiff a paper writing, directed to Messrs. Alexander, Thomas & Steele in these words and figures, viz: "West V. Transp. Co.:

You may settle with Mr. S. R. Dresser for our share of oil in tank at Prospect, Roth & Dresser wells to June 1, 1871. June 15, 1871.

"Wright & McCakdlEss

That a day or two thereafter, the plaintiff presented the said paper to Mr. Alexander, one of the parties to whom it was addressed who refused to accept it; that after some negotiations, the plaintiff and said Alexander and McCandless of the firm of Wright & McCandless, agreed to change the said paper writing by directing the same to the defendant and thereupon the words "Messrs." Alexander, Thomas & Steele" therein, were erased by running a pen through the same and the words "West V. Transp. Co." inserted in lieu thereof; that thereupon, the plaintiff accompanied by Alexander and McCandless, went to the office of defendant and gave the said paper writing to one John M. Brown, the defendant's book keeper in the absence of its managing agent, M. C. C. Church; that Alexander told Brown to make up the division of the oil when shipped and that the plaintiff was entitled to the share of Wright & McCandless, and the said paper writing was left with said Brown for Church to see on his return; that it was also proven that at the time last mentioned the defendant had not possession of any portion of the oil in dispute, but that it constituted parts of larger quantities in the tanks at the several wells mentioned in said paper writing, and was in possession of the Alexander Petroleum Company; that in the latter part of June, 1871, the Alexander Petroleum Company shipped through the pipe lines ofthe defendant from the wells aforesaid, the oil therein contained, to the tanks of the defendant at Petroleum, among which were the oils so claimed as aforesaid; that after such shipment the plaintiff on the first day of July, 1871, applied to M. C. C. Church the managing agent of defendant and demanded from him the oil claimed by him to be due under and by virtue of the said paper writing; that said Church replied that the defendant had the oil, but that the Alexander Petroleum Company had given the defendant notice, both verbal and written, that they claimed all the oil shipped from said wells, and that he (Church) as the agent of the defendant could not recognize the directions of any person, except those who shipped the...