GrARBER v. BlATOHLEY.

• Decision Date: 15 March 1902
• Citation: 51 W.Va. 147
• Parties: GrARBER v. BlATOHLEY.
• Court: West Virginia Supreme Court

51 W.Va. 147

GrARBER

v.BlATOHLEY.

Supreme Court of Appeals of West Virginia.

Submitted September 9, 1901.

Decided March 15, 1902.

1. Justice Complaint Account Items.

In an action for the recovery of money due on contract before a justice, a complaint in writing in the nature of a declaration in assumpsit with the common counts, the last count "also in the sum of two hundred and fiity-six dollars and thirty-six cents as stated in the account of the plaintiff against the defendant, attached to and made part of this complaint," and averring promise and failure to pay, and which account attached is a complete bill of particulars of the items with date and amount of each and showing what the charge was for; with notice that it will be relied upon at the trial; is held sufficient under the statute, (p. 149).

2. Justice New Trial Discretion.

Under section 5, chapter 138, a trial court has large discretion in granting new trials conditioned on payment of costs by the moving party and the appellate court will not interfere unless it clearly appears that such discretion has been abused, (p. 149).

3. New Trial Payment of Costs.

Where a new trial has been granted conditioned on payment of costs, the appellate court will not entertain an assignment of error on that ground, unless an exception was taken to the ruling of the court so granting it. (p. 150).

4. Judgment Pendente Lite Purchaser.

The pendente lite purchaser of a judgment rendered by a justice may continue to prosecute the claim in the circuit court in the name of his assignor, the plaintiff, when appealed to that court by the defendant, (p. 154).

5. Authorities Cited and Approved.

Syl. 8, Hefflebower v. Detrick, 27 W. Va. 16, SyL pt. 3; Trust Co. v. McClellan, 40 W. Va. 405 and Syl. 3, Dewing v. Hutton, 37 S. E. 670 approved, (p. 155).

6. Agent Declarations Acts Evidence.

Neither the declarations nor the acts of a man can be given in evidence to prove that he is the agent of another, yet he is competent as a witness on the question of his agency, (p. 156).

Error to Circuit Court, Barbour County. Action by John Garber against C. Gr. Blatchley. Judgment for plaintiff. Defendant brings error.

Reversed.

J. Hop. Woods, for appellant. Ice & Ice, for appellee.

McWhorter, Judge:

On the 11th day of January, 1897, John Garber brought his action for recovery of money due on contract before a justice of Barbour County against C. G. Blatchley and ten others returnable on the 16th day of January, 1897. On the hearing of the cause on the 16th of January the addon was dismissed as to all the defendants except C. G. Blatchley upon the admission of plaintiff that they were not liable to him. A judgment was rendered against C. G. Blatchley in favor of plaintiff for two hundred and fifty-six dollars and thirty-six cents, from which judgment the said Blatchley appealed to the circuit court of Barbour County. On the 7th day of June, 1898, on motion of the defendant, Blatchley, plaintiff was required to file his complaint in writing, which was afterwards done, to which complaint the appellant objected as being insufficient but the objection was overruled and the appellant filed his answer thereto, a jury was impaneled and sworn in the cause and after hearing the evidence and arguments of counsel returned, a verdict for plaintiff for the sum of two hundred and fifty-six dollars and thirty-six cents. It seems that in the course of the trial exceptions were taken to the ridings of the court and by affidavits filed upon motion, to set aside the verdict. The stenographer's notes of evidence were burned by mistake of an employee in the hotel before the same were typewritten and the motion of appellant to set aside the verdict was sustained and the verdict set aside and a new trial granted. On the 6th day of November, 1899, another jury was impaneled, and having heard the evidence and not being able to agree upon a verdict were dis- charged. Again on the 18th day of February, 1901, another jury was impaneled and having heard the evidence returned a verdict for plaintiff for the same amount as found before. The defendant moved to set aside the verdict, which motion was overruled and judgment rendered thereon. The defendant took five several bills of exceptions and obtained his writ of error to said judgment and assigned six several causes of error; first, that it was error for the court to overrule the exception of plaintiff in error to the sufficiency and the filing of plaintiff's complaint as set out in the order entered at the February term, 1899.

An examination of the complaint filed will show that it is in fact a declaration in assumpsit with the common counts such as would be filed in the circuit court and would be sufficient on demurrer, and accompanying such complaint an itemized account was filed showing every item claimed and for what charged and giving various credits to which plaintiff admitted the defendant was entitled, and showing a balance of two hundred and fifty-six dollars and thirty-six cents due the plaintiff with notice attached thereto that upon the trial the plaintiff would rely upon proof of said account. The exception thereto was "because it is not in compliance with the statute and states no facts constituting the plaintiff's claim." With the exception of four items of a few cents each and two items for railroad tickets three dollars and fifty-five cents each, the whole account is made up of days work running from August 26th to December 4th inclusive; the date of each day's work and how used was given with particularity in said account and the said four small items each shows for what it was paid out by plaintiff. The plaintiff's counsel cites Riley v. J arris, 43 W. Va. 43, in support of this assignment. That was an action in the circuit court and it is held that the allegata and probata must correspond, and where there is no count in a declaration on the cause of action shown by the evidence it is a variance and there can be no recovery; and it is further held that a bill of particulars filed with a declaration in an action of assumpsit under section 11, chapter 125, Code, is no part of the declaration and there can be no plea to it. In case at bar one count is for indebtedness "in the sum of two hundred and fifty-six dollars and thirty-six cents, as stated in the account of plaintiff against the defendant attached to and made part of this complaint." If this complaint and bill of particulars is not sufficient then pleading before a justice becomes more technical and difficult, than pleading in the circuit court.

The second assignment that "It was error for the court to give and read to the jury the three instructions asked for by appellee as set out and excepted to in appellant's bill of exceptions No. 2 in said action." The instructions referred to in bill of exceptions are as follows: "No. 1. The Court instructs the jury that if they believe from the evidence that the plaintiff was employed by the defendant to continue the drilling of the oil well in question after E. C. Coulter had ceased, to drill at said oil well, and that the plaintiff was never discharged by the said defendant or his agent, then the jury should find for the plaintiff. No. 2. The court instructs the jury that the question of the agency of M. M. Hoff for the defendant, C. G. Blatchley, with reference to the matters in controversy as set out in the plaintiff's account filed in this case, is a question for the jury, and if they believe from the evidence that said Hoff was the agent or manager for the said defendant in respect to the drilling and work done on the well in question by the plaintiff, then the acts, contracts and declarations of the said agent with reference to said work are the acts, contracts and declarations of the defendant, C. G. Blatchley, and the jury should find for the plaintiff. No. 3. The court instructs the jury thatif they believe from the evidence that the plaintiff was employed by the defendant to do the work charged for in the account, and was not discharged from his employment by the defendant, or that M. M. Hoff was acting as the agent of the defendant in having the plaintiff continue to perform the work and labor of drilling and working on the well in. question after the 26th of August, 1896, then in that event the defendant is liable for the work and labor done by the plaintiff on said well, and the jury should find for the plaintiff." It is claimed the first instruction is bad and misleading because it was not necessary for appellant to discharge appellee under his employment after Coulter had ceased to drill at the oil well if appellee knew that his employment was to cease after taking out the sand pump mentioned and cleaning out the well. It appears from Garber's own testimony that he and Blatchley and Coulter had an interview at Dr. Hoff's residence in Phillippi; that Blatchley wanted Coulter to clean out the well, an old sand pump had been discovered in it, that he wanted the hole cleaned out and wanted to be notified when it was done and said: "I want to come up and see you drill and run the tools and pump the bottom out so I can see what it is." Mr. Coulter said: "I want to go away and there is a little bit of gas and it is difficult to do this kind of fishing, Mr. Garber is fully competent." in fact better, he thought, than himself. "And Mr. Blatchley asked me if I would remain and complete the work take the bottom out so he could see the bottom of the hole. I told him I would and he asked Mr. Coulter if he could send down the necessary fishing tools to take out this piece of iron. Mr. Coulter said he could. The next day, I think it was, I received the tools and I proceeded to take out this sand pump and iron, which took several days to get out. It was badly broken up and mashed. It was difficult to get out but I did finally get it oui; about the 25th of August 25th I believe it was but before I went to work I asked Mr. Blatchley in whose charge I...