Hodge v. Garten

• Decision Date: 12 November 1935
• Docket Number: 8238.
• Citation: 182 S.E. 582,116 W.Va. 564
• Parties: HODGE v. GARTEN.
• Court: West Virginia Supreme Court

182 S.E. 582

116 W.Va. 564

HODGE v. GARTEN.

No. 8238.

Supreme Court of Appeals of West Virginia.

November 12, 1935

Submitted October 30, 1935.

Syllabus by the Court.

1. "A communication to an attorney, by one to whom he had previously given advice concerning the subject matter of the communication and to whom he was giving advice generally about the legal phases of his business, during a period of time within which the communication was made, is privileged, notwithstanding lack of charge or payment for the services rendered." Donohoe v. Collett, 87 W.Va. 383, syl. 6, 105 S.E. 265.

2. Extrinsic evidence is admissible to explain an ambiguity appearing on the face of a contract.

Error to Circuit Court, Fayette County.

Action by Albert Hodge against C. P. Garten. Judgment for plaintiff and defendant brings error.

Reversed and remanded for new trial.

Hubard & Bacon, of Fayetteville, for plaintiff in error.

Love & Love, of Fayetteville, for defendant in error.

WOODS Judge.

This is an action in assumpsit to recover the contract price, less credits, of certain mine posts which plaintiff claims to have sold defendant. The latter complains of judgment against him.

Plaintiff bases his right to recovery on a written contract, executed February 17, 1933, which, after omitting the introductory and signatory paragraphs, reads: "Witnesseth: That for and in consideration of the sum of Five Hundred ($500.00) Dollars cash in hand paid to the party of the first part by the party of the second part, and the further consideration hereinafter mentioned, the party of the first part hereby agrees to and does sell unto the party of the second part does hereby agree to buy, all mining posts that the party of the first part has made and now has on hands, at the price of one cent (1¢) per lineal foot for each post. It is further agreed by and between the parties hereto that the Five Hundred ($500.00) Dollars which is paid upon the signing of this contract is to be credited on the payment for the posts and the balance to be paid in sixty days from the date of this contract." In accordance with the clause which we have italicized, the plaintiff introduced evidence showing that, at the time of the execution of the contract he owned mine posts at Huddleston farm, Nickelville, Graydon, Victor, Fox farm, and Hypes farm.

Defendant, in support of his position that the agreement was limited to mine posts at Huddleston farm and Nickelville, testified on the trial that plaintiff had broached him a few days prior to execution of the contract on the matter of purchasing mine posts; that plaintiff took him to Huddleston farm and Nickelville (a short distance from Fayetteville) to look over the posts; that on returning to Fayetteville plaintiff stopped his car, and both had a talk about the contract, it being understood that defendant pay $500 down and the remainder in sixty days; that plaintiff said, "I think we better have a written contract in regard to this"; that defendant said, "No, it doesn't make any difference. I will make a notation on the check, stating what our contract is, but I have no objection to a contract because I expect to live up to it"; that plaintiff replied, "Well, to be sure about it, I will go over and have the contract written up"; that while plaintiff was gone, defendant stepped into the bank and wrote a check for $500 on which he made the notation: "$500 payment on mine props at Nickelville and on Huddleston farm at one cent per lineal foot"; and that when plaintiff returned to the car, defendant looked over the contract, and believing it embodied their agreement, signed the same in duplicate, and gave plaintiff the check. Defendant also testified that on May 16, 1933, he sent plaintiff by mail a check for $295.66 "in full of account," and included therewith a statement showing the number of lineal feet of posts at Nickelville and Huddleston farm; and, further, that he did not know that plaintiff owned other posts until six months after the execution of the contract.

Plaintiff testified, however, that he and defendant had agreed the day before and that he met defendant coming out of the bank with the check for $500, and upon reading the notation thereon, said to himself, "Old man, you are aiming to zip me right now and use this check as a witness," and then turning to defendant told him that "We had better have a written contract," etc. He also states that the notation on the check of May 16, 1933, was made after payment.

At the conclusion of the testimony, the trial court, at the instance of plaintiff and over objection of defendant, gave the former's instruction No. 1, which told the jury that in the absence of fraud the written contract, dated the 17th day of February,...