Hubbard v. Schofield

• Decision Date: 28 October 1924
• Docket Number: No. 5158.,5158.
• Citation: 97 W. Va. 453
• Court: West Virginia Supreme Court
• Parties: W. S. Hubbard v. Lane Schofield.

97 W.Va. 453

W. S. Hubbard

v.Lane Schofield.

No. 5158.

Supreme Court of Appeals of West Virginia.

Submitted September 30, 1924.

Decided October 28, 1924.

1.Trial Where Plaintiff Introduces Stipulation of Right to Recover on Condition, Direction of Verdict for Defendant, in Absence of Contrary Evidence, Held Erroneous.Where on the trial of an action before a jury the parties by counsel stipulate in writing that plaintiff, is entitled to recover from defendant a certain sum of money, unless he has been guilty of duplicity, misconduct and bad faith, or unless defendant is entitled to certain off-sets, both of which grounds plaintiff denies, and the plaintiff introduces this stipulation in evidence, a prima facie case for recovery of the sum admitted is made out, and in the absence of any evidence on the defensive pleas, the court should not direct a verdict for the defendant.(p. 454).

2.Evidence Absent Plaintiff Pecuniarily Unable to be Present at Subsequent Trial, Cannot Introduce Transcript of Evidence in Former Trial.

Where the plaintiff is living, though in another state to which he has removed, and is absent and pecuniarily unable to be present, he is not entitled, on a second or subsequent trial, to introduce in evidence the testimony given by him on a previous trial as reported and transcribed by the official reporter who took the testimony stenographically, (p. 455).

Error to Circuit Court, McDowell County.

Action by W. S. Hubbard against Lane Schofield.Judgment for defendant, and plaintiff brings error.

Reversed and remanded.

Strother, Sale, Curd & Tucker, for plaintiff in error.Bias & Chafin, for defendant in error.

Miller, Judge:

On the trial below, in an action of assumpsit, the parties were at issue before the jury on pleas of non-assumpsit and of off-sets filed by defendant.The plaintiff sued for certain commissions on sales of mine supplies, amounting to $2,000.06.The defendant's off-sets amounted to $1,566.45 The case was here on a former writ of error, and the issues on the subsequent trials were the same as on the first.To defeat recovery by plaintiff on the first trial, defendant relied on alleged fraudulent conduct of plaintiff, to the prejudice of defendant.

On the last trial, in which the judgment now before us was pronounced, the parties stipulated as follows:

"It is stipulated and agreed by and between counsel for the parties hereto that unless, as contended by defendant, the plaintiff has forfeited his right to all commissions by reason of duplicity, misconduct and bad faith, or unless the defendant is entitled to the off-set amounting to $1,318.41, claimed by him in his plea of off-sets, in whole or in part, then and in that event, the plaintiff is entitled to recover of and from the defendant the sum of $903.15; but the defendant denies the right of plaintiff to any recovery, because of the alleged duplicity, misconduct and bad faith, and even though the jury may decide that the plaintiff has not forfeited his right to the $903.15 because of the alleged duplicity, misconduct and bad faith, the defendant then claims that the defendant is entitled to the difference between the said sum of $903.15 and the total amount claimed as off-set by the defendant, $1,318.41, or the sum of $415.26.

"The plaintiff, W. S. Hubbard, denies that the defendant is entitled to the $1,318.41, or any part thereof, and denies further that he has been guilty of any bad faith, duplicity or misconduct, which would subject him to any pains or penalties whatever, or the recovery of any amount whatever against him."

This stipulation was admitted in evidence and read to the jury; after which plaintiff's counsel, in his absence, offered to read to the jury the testimony given by him before the court and jury in the case on the previous trial, showing as a reason therefor the absence of plaintiff, his residence in Chicago, Illinois, and his alleged financial inability, as shown by his affidavit, to attend the trial in person; which proposal, on objection of defendant's counsel, was denied; and thereupon, on motion of defendant's counsel, the court directed the jury to return a verdict for defendant, which the jury did; and upon this verdict the judgment of nil capiat complained of was pronounced.

It is very apparent that the trial court was in error in so directing a verdict in favor of defendant, even if the testimony of the plaintiff given on the...