Hall & Co. v. Lyons & Co.
| Decision Date | 12 February 1887 |
| Citation | 29 W.Va. 410 |
| Court | West Virginia Supreme Court |
| Parties | Hall & Co. v. Lyons & Co. |
Where a warrant is issued against a firm, and the summons states the name of the firm and the names of the partners, who constitute the firm, upon the trial of the case, whether before the justice or before the Circuit Court on appeal, the plaintiff' is not bound to prove, who are the members of the firm, unless an affidavit be filed denying, that those named in the summons constitute the firm. (p. 417.)
If in the trial of a case a court admits evidence offered by the plaintiff against the protest of the defendant, ruling-improperly, that the evidence is admissible, and there is a verdict and judgment against the defendant, the appellate court will, when the question is properly brought before them, presume, that the defendant was prejudiced by such improper ruling, unless it affirmatively appears from the record, that in point of fact the defendant could not have been prejudiced by the ruling; and ordinarily this can only be made to appear by all the evidence being certified, so that the appellate court is satisfied, that, if this improper evidence had been excluded, the plaintiff's case would still have been made out so clearly, that, if the jury had found a verdict for the defendant, the court ought to set it aside as unsustained by the evdence or contrary thereto, (p. 420.)
A court should never set aside a verdict for after-discovered evdence, unless the evidence is such, that its introduction ought to produce a different verdict, (p. 422.)
If objected to, the court ordinarily ought not to permit a plaintiff to prove, that he charged the account sued on to the defendants and not to one of them only on his original book of entries.
This should be proven by the production of said book, unless it be shown, that the book has been destroyed or for some other sufficient reason can not be produced, (p. 420.)
Statement of the case by Green, Judge:
The plaintiffs, J. A. Hall & Co., on September 16, 1.881, procured from a justice of Cabell county a summons against A. Lyons and W. A. Lyons, doing business as A. Lyons & Co., to answer the plaintiffs for the recovery of money due them for merchandise, the amount of the demand being stated to be $187.21. The case was tried before the justice on October 1, 1881; and the defendants.appeared. After hearing the evidence and the arguments of counsel on both sides the justice rendered a judgment for the plaintiffs against the defendants for the whole of the demand, $187.21, with interest thereon from October 1, 1881, till paid and costs. The defendants took an appeal from this judgment. The case was tried in the Circuit Court of Cabell county by a jury of six, who on March 16, 1885, rendered this verdict:" We, the jury, find for the plaintiffs and assess their damages including principal and interest to this date at $221.89." Whereupon the defendants moved the court to set aside the verdict as contrary to the law and evidence and because of after-discovered evidence unknown at the time of the trial. This motion was overruled and judgment was rendered by the court against the defendants and the security on the appeal bond for $221.89, with legal interest thereon from the date of the judgment, March 25, 1885.
To this judgment a writ of error and supersedeas has been awarded.
Exceptions were taken during the trial and to the refusal of the court to grant a new trial, from which it appears, that the evidence before the jury and the proceedings in the case were substantially as follows:
The plaintiffs proved by R, H. Baker, a member of the firm of J. A. Hall & Co., the plaintiffs, that he conducted the merchantile business of the firm at Milton, in said county, in the year 1879; that in the spring of that year he refused to sell any goods or supplies to Hanna & Knight; that shortly after J. R. Burke came to him and said, that he was the agent of the defendants, A. Lyons & Co., a firm con- slsting of A. Lyons and W. A. Lyons, for whom Hanna & Knight were getting out headings, and asked the plaintiffs to furnish Hanna & Knight such goods and supplies, as they might call for till further orders from, him, and., charge the goods so furnished to the defendants, A. Lyons & Co., who would pay the plaintiffs' account monthly; that they accordingly furnished Hanna & Knight gOods and supplies during the month of June, 1879, to the amount of $155.65; that this with other items of account, which the plaintiffs had against the defendants amounted to $215.34; that in July, 1879, this whole account was paid by a draft on A. Lyons; that a few days after this draft was taken up by Burke, he giving for it a check, which was paid; that the plaintiffs, the account for June having been thus promptly paid, continued to furnish Hanna & Knight goods and supplies during the month of July up to the 26th of that month, charging the same to A. Lyons & Co. according to the understanding with Burke; that on the said 28th of July Burke told them to furnish no more goods or supplies to Hanna & Knight on account of A. Lyons & Co., and they accordingly stopped furnishing them goods; that the amount of good sand supplies furnished to Hanna & Knight during the month of July, before he received said notice to stop, was $149.56, with $17.64 worth of staves furnished by the plaintiffs to the defendants made up the sum of $167.20, which with the interest on it is the account warranted on in this ease.
It further appears, that shortly after this account was incurred, witness got Hanna, Knight and Burke together, and together they made a settlement, by which it was ascertained and agreed, that the amount of goods and supplies furnished to Hanna & Knight or on their orders during the month of July, 1879, was $149.50; that Burke took a memorandum of the amount and promised to pay it; that, as payment was not made promptly, he mentioned the matter to Burke, who said, he supposed his parties were hard up, but that the account would be paid; that, before the suit was brought, he met W. A. Lyons, one of the defendants, and asked him about the payment of this account, and he said:" We would have paid it long ago, if our agent, Capt. Burke, had said it was all right; but he said it was not; that the goods and supplies and the staves were all charged to A. Lyons & Co.; that they would not have been furnished to W. A. Lyons, as he was insolvent, A. Lyons being the responsible member of the firm of A. Lyons & Co.
On cross-examination the defendants' counsel showed this witness, Baker, an itemized account, which had been furnished to the defendants during the trial of the case in the Circuit Court, no such account having been asked for before. This itemized account was made off against A and W. Lyons as debtors to J. A. Hall & Co., and among the items of the account were charges of orders to numerous parties, and witness was asked, if these orders were in writing, and he answered, they were and signed by Hanna & Knight, He was then asked, to whom these goods were charged on plaintiffs' books, and he answered, to Lyons & Co.; then this witness was asked to produce the books of the plaintiffs, in wdiich he said, this account was charged against A. Lyons & Co., and he was also asked to produce the written orders given by Hanna & Knight for goods and supplies to different persons, as stated in this account, The witness said the books and written orders were at his place of business in Milton, some eight or ten miles distant, and he could not produce them immediately. This witness's evidence was then objected to by the defendants, because it was secondary, and they demanded the production of these books of original entry and these orders; but the court overruled the objection, on, the ground that it would not stop the trial of the case to send for the books and orders, and because of the laches of the defendants in not demanding these books and orders, before they went into trial, and in not having a subpcena duces tecum, issued for them, before the case was called for trial. Thereupon the defendants' counsel moved the court to exclude said evidence from the jury as improper, which motion the court overruled, and the defendants excepted.
The plaintiffs then proved by 8. Martin, that he was in the plain tiffs' store and heard Burke tell Baker to let Hanna & Knight have goods and Lyons would pay for them.
To, J. A. Hall & Co., Dr.
for the above draft, draft to be returned.
"J. A. Hall & Co."
These being all the facts proven or testified to, the jury rendered a verdict for the plaintiffs against the defendants and assessed the damages principal and interest to time of trial at $221.89. The defendants by counsel asked for a new trial, which the court refused to grant. They subsequently made a motion for a new trial based on evidence discovered after the trial as shown by the affidavit of W. A. Lyons. This after-discovered evidence was the following receipt:
In his affidavit W. A....
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