Hunt v. Ajax Coal Co.

• Decision Date: 09 March 1920
• Docket Number: 3926.
• Parties: HUNT v. AJAX COAL CO.
• Court: West Virginia Supreme Court

102 S.E. 603

85 W.Va. 736

HUNT v. AJAX COAL CO.

No. 3926.

Supreme Court of Appeals of West Virginia.

March 9, 1920

Submitted March 2, 1920.

Syllabus by the Court.

A mistake of fact in a verdict, disclosed on its face or by analysis thereof in the light of the issues and evidence in the case, constitutes good ground for award of a new trial.

A verdict in an action of assumpsit, involving a claim for purchase money of lumber, cross-ties, and mine posts, on the one side, and a demand for purchase money of merchandise asserted by way of set-off, on the other, which treats both accounts as having been sufficiently proved, but allows all of that of the plaintiff and less than half of that of the defendant, on the theory of a settlement between the parties, as of a certain date, is contradictory uncertain, and attributable to a mistake on the part of the jury, made in their calculations.

Error to Circuit Court, Fayette County.

Action of assumpsit by F. W. Hunt against the Ajax Coal Company with cross-claim by defendant. Verdict for plaintiff, motion to overrule it set aside, and judgment rendered thereon for a certain amount, and defendant brings error. Reversed, verdict set aside, and cause remanded for a new trial.

Osenton & Horan, of Fayetteville, for plaintiff in error.

J. L Ryan, of Fayetteville, and Thos. P. Ryan, of Spencer, for defendant in error.

POFFENBARGER J.

In this verdict in an action of assumpsit, involving cross-claims the plaintiff's account being one for lumber, ties, mine posts, etc., amounting to $705.30, and the defendant's one for general merchandise, coal, and feed for stock, amounting to $597.35, exclusive of a check hereinafter to be mentioned, the jury allowed the plaintiff his entire claim and rejected a large part of the defendant's. On the verdict for $515.89 in favor of the plaintiff, the court rendered a judgment, after having overruled a motion to set aside.

The plaintiff's statement begins with a small balance due him on February 4, 1915. That of the defendant commences on December 26, 1914. Although no settlement was made in December, 1915, the defendant ascertained from its books, on December 14, 1915, that there was due the plaintiff $100.90 and accordingly made out a voucher and check in his favor for that amount, on the same paper, and sent them to him, but he never signed the the voucher nor cashed the check. Nor was the paper ever returned to the defendant, but it was put in evidence on the trial and is no longer in the plaintiff's hands. The defendant's account, made after the date of the check, amounted to $290.31, as shown by its books regularly kept and proved by the clerks and bookkeeper. Deduction of said sum of $290.31 from plaintiff's entire account and addition of the amount of the check to the remainder make exactly the amount of the verdict, but this result is...