Ireland v. Smith
| Decision Date | 31 March 1914 |
| Citation | 81 S.E. 542,73 W.Va. 755 |
| Parties | IRELAND v. SMITH ET AL. |
| Court | West Virginia Supreme Court |
Submitted February 17, 1914.
Syllabus by the Court.
A case involving no new principle of law and depending on conflicting oral testimony, wherefore the judgment is affirmed.
Error to Circuit Court, Doddridge County.
Action by Rosalena Ireland against T. B. Smith and others. Judgment for plaintiff, and defendants bring error. Affirmed.
L. W Chapman and G. W. Farr, both of West Union, for plaintiff in error.
Robinson & Prunty and R. S. Blair, all of Harrisville, for defendants in error.
This writ of error was awarded on petition of Thomas B. and Daniel S. Smith to a judgment rendered against them in favor of plaintiff by the circuit court of Doddridge county for the sum of $550. A number of errors are assigned, the first being the overruling of the demurrer to the declaration. This assignment is not well taken. The declaration contains the common counts in assumpsit and is good in form.
The second assignment is that it was error to overrule defendants' motion to exclude plaintiff's evidence because of a variance. There was no variance. The evidence was admissible under the quantum valebat count. The action is to recover the price of household goods which plaintiff claims to have sold and delivered to defendants at their special instance and request. The facts rest wholly on conflicting oral testimony. It is unnecessary to detail it. It suffices to say that plaintiff's evidence tends to prove that she conducted a hotel at Salem, W. Va., in a building which had been leased to her by defendants, who were the joint owners thereof; that she was in arrears in the payment of rent and wanted to quit the hotel business; that she owned the furniture in the building; that defendants came to her place on September 8, 1907, and talked with her about buying it and went through the house and examined it; that Dan Smith said he had to go away that evening and remarked that whatever Thomas Smith did in the matter would be all right with him; that on the next day Thomas Smith returned and he and her husband then went through the house and again examined the furniture and settled on the price of $700, $150 of which was to be applied in payment of rent then due; that she was present and agreed to the sale; that Mr. Smith then asked her to stay in the house a few days until he could get some one to take charge of it; that she remained nearly five weeks thereafter and he did not send any one to occupy the house; that there were no keys that would lock the doors from the outside, and she had Mr. George Trainer to lock them from the inside and come out through one of the windows; that she requested him to inform Mr. Smith where the keys were and then left the house. She is corroborated by her husband, her daughter, and, to some extent, by Mrs. Mary M. Davis, to whom Mr. Thomas Smith proposed to sell the furniture, at the price of $700, shortly after the alleged sale to him and Daniel Smith by plaintiff. Mrs. Davis says that Mr. Smith did not propose to sell the goods as agent for plaintiff, and that he told her that he had promised to let Mrs. Ireland out, as she was not able to run the business. Plaintiff's evidence is certainly sufficient to support the verdict. Her evidence conflicts directly with much of the material testimony of defendants. But, in the absence of controlling facts and circumstances clearly established, the court has no right to disturb the finding of the jury.
Plaintiff's leaving the goods in the house, under the circumstances detailed by her, constituted sufficient delivery thereof. There is no evidence that a delivery at any other place was contemplated. She had remained in the house much longer after the alleged sale, than she had agreed to remain, and there was no other reasonable course open to her but to leave the goods in the house. If the jury believed, as they had a right to believe from plaintiff's testimony, that Daniel Smith had authorized Thomas Smith to buy the goods on their joint account, then the contract of purchase was joint and they were jointly liable. They were co-owners of...
To continue reading
Request your trial