Ice v. Maxwell el al.
| Decision Date | 08 June 1910 |
| Citation | 70 W.Va. 186 |
| Court | West Virginia Supreme Court |
| Parties | Ice v. Maxwell el al. |
Appeal and Error Second AppealLaiv of the Case.
This is a review of this case on writ of error to a judgment rendered in a second trial. There was also a review by this court of the first trial, reported in 61 W. Va. 9. The law governing this review of the case will be found in the syllabus to the former review.
Error to Circuit Court, Randolph County. Action by E. Clark Ice against W. B. Maxwell and others. Judgment for plaintiff, and defendants bring error.
Affirmed.
C. II. Scott and H. 67. Kump, for plaintiffs in error.
James A. Bent and Samuel T. Spear, for defendant in error.
Williams, President:
Plaintiff recovered a judgment for $500 against W. B. Maxwell, L. P. Loudin, William Flint and J. A. Cunningham, and they have obtained this writ of error. This case was reviewed upon a former writ of error, and will be found reported in 61 W. Va. 9.
Plaintiff's suit is for services rendered in procuring a purchaser for a tract of timber land in Randolph county controlled, and later owned, by defendants, pursuant to an alleged oral agreement that for such services he should be paid $500. That he did procure a purchaser and introduce him to defendants, and that defendants thereupon began negotiations with him, which in a short time thereafter ended in their selling the land to him, are undisputed facts. In relation to a number of facts, however, the testimony of the plaintiff and of the defendants is irreconcilably in conflict, But as to the credibility of witnesses, the weight of this testimony, the jury were the judges. We cannot disturb the verdict when it rests upon conflicting testimony of witnesses.
At the time plaintiff was employed to find a purchaser defendants were not the owners of the land in question, but Mr. Cunningham had an option contract with the owners to purchase it at a certain price. That option expired on the 28th day of February, 1903. It was on the 11th of March following that plaintiff introduced to defendants the man who purchased from them. On the day before the option expired, the land was taken over by defendants. It was then conveyed by the owners to L. P. Loudin, trustee, who held it in trust for himself and the others in the following proportions, viz: Flint and Maxwell each a fourth, Loudin one-eighth, and Cunningham threeeighths. On the same day a written declaration of trust was signed by all four of the defendants showing the several interests as above stated. Prior to that time Mr. Maxwell had become jointly interested with Mr. Cunningham in the option, and, not finding a purchaser and seeing the option about to expire, they decided to purchase the land themselves, and did so, by interesting the two other defendants, Loudin and Flint, as partners. They bought the land for the purpose of speculation, and were as anxious to find a purchaser after the 18th of February, as before. The cause for limiting plaintiff to the 28th of February as the time in which he could find a purchaser, was removed by their taking over the land themselves, and by their continuing desire to sell, and they never notified plaintiff of their own purchase of the land, but apparently permitted him to continue his efforts to find a purchaser, without any new agreement or understanding. Being now the owners, they had the power to extend plaintiff's time, as well as the opportunity to receive the benefit of his services. W7hether or not the time was extended, was a fact which the jury might have inferred from the facts and the conduct of the parties.
Plaintiff testifies that on the day the purchaser with whom he had been in correspondence, arrived in the city of Elkins, he went to Mr. Maxwell and asked him if the land was still for sale, and told him, if it was, he would bring the man to his office, and introduce him to him, and that Mr. Maxwell replied that the land was still on the market, and that the man had come...
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