Jennings v. Smith

Decision Date18 November 1980
Docket NumberNo. 13932,13932
Citation165 W.Va. 791,272 S.E.2d 229
PartiesArthur H. JENNINGS et al. v. Charles W. SMITH, Trustee, Ridge Pike Lumber Company, Inc., etc.
CourtWest Virginia Supreme Court

Peter L. Chakmakian, Charles Town, for appellants.

Steptoe & Johnson and Herbert G. Underwood, Clarksburg, for appellees.

Syllabus by the Court

1. "A judgment will not be reversed for any error in the record introduced by or invited by the party asking for the reversal." Syl. pt. 21, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966).

2. "It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given." Syl. pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).

3. "In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken." Syl. pt. 1, Adams v. Bowens, W.Va., 230 S.E.2d 481 (1976), citing, Syl. pt. 1, Mowery v. Hitt, 155 W.Va. 103, 181 S.E.2d 334 (1971).

PER CURIAM:

The appellants, Arthur H. Jennings and Judith A. Jennings, are appealing a final judgment of the Circuit Court of Jefferson County entered on December 13, 1976, denying their motion to set aside the verdict of the jury and award a new trial. Upon careful consideration of the record, briefs, and oral argument presented on this appeal we affirm, concluding that any error or defect in the proceedings below was either invited or harmless.

The facts in this case are largely undisputed, having been stipulated to in the trial court. On November 3, 1970, the appellants entered into a written retail installment or retail lien contract with the defendant-appellee, Ridge Pike Lumber Company, Inc., (Ridge Pike), for the purchase of a Brierwood Model home. Ridge Pike's main business is the fabrication and selling of residential structures or single-family dwellings. The retail installment contract provided for a cash price of $20,377.80. After deducting the down payment, there was remaining an unpaid balance on the cash price of $20,346.00. This unpaid balance was the total price the appellants would have had to pay for the model home had they elected to purchase it with cash. An additional $254.00 was added to the unpaid balance for miscellaneous expenses. The contract also provided for total payments under a deferred payment plan of $45,320.00. The difference between the cash price and the total payment price, amounting to $24,720.00, was designated as a finance charge. The parties further agreed that the appellants would pay the deferred payment price by monthly installments over a twenty-year period at an annual percentage rate of 9.25%.

There was also evidence introduced indicating that the parties discussed the proposed housing purchase in September 1971 and entered into a "Specification and Selection Agreement" concerning the materials to be utilized in the construction. The appellants chose to modify the basic model, adding and omitting specific items and exercising various options available to them as to the materials to be incorporated into the structure; these changes resulted in an increase in the cash price of appellants' home above the cost ordinarily charged for a model home of this type.

In connection with the transaction the appellants also executed a promissory note for the deferred payment price payable over a twenty-year period at an annual percentage rate of 9.25%. As security for the payment of the note, appellants executed and delivered a deed of trust on the property on which the house was to be constructed.

By July of 1973, the house had been constructed, the appellants had become delinquent in their monthly payments, and the trustee under the deed of trust had advertised the property for sale. The appellants then brought this action in the Circuit Court of Jefferson County seeking an injunction to prevent the proposed sale on the grounds that the interest rate provided for in the retail installment contract and promissory note was usurious under W.Va. Code 47-6-6. The appellants sought a declaration that all interest agreed upon was void as well as recovery of a statutory penalty of four times the amount of interest agreed to be paid.

The appellees defended the action on the ground that the sale of the home was a bona fide sale of personal property under the "time-price doctrine" and therefore was not subject to West Virginia's usury statutes. See generally, Carper v. Kanawha Banking & Trust Company, 157 W.Va. 477, 207 S.E.2d 897 (1974). Alternatively, appellees argued that the transaction was an installment loan on which a 6% add-on interest rate could lawfully be agreed upon under W.Va. Code 47-6-5(a). 1

The appellants make three assignments of error. First, they contend the trial court erred in giving Defendants' Instruction No. 6 because it was legally erroneous, not supported by the evidence, and plainly in conflict with Plaintiffs' Instruction No. 1. Defendants' Instruction No. 6 told the jury that if they believed from a preponderance of all the evidence that the transaction between the parties was an installment loan rather than a sale they could not return a verdict for the plaintiffs unless they believed that the "finance charge" in the retail installment contract was in excess of a 6% add-on interest rate.

The appellants have not demonstrated in their brief in what respect Instruction No. 6 is not a proper statement of the law, nor do we perceive any plain error in this instruction. There was ample evidence of record to support giving this instruction and from which a jury could have inferred that the transaction was in the nature of an installment loan. The trial court properly allowed the appellees to present their theory of defense to the jury. We thus conclude the trial court did not err in giving that instruction.

This brings us to appellants' argument that Defendants' Instruction No. 6 was in patent conflict with their Instruction No. 1. Instruction No. 1 advised the jury that the "highest rate of interest allowed by law in the State of West Virginia at the time that the retail lien contract between the Plaintiffs and Ridge Pike Lumber Company, Inc., was entered into was 8% per annum, except for certain exceptions not pertinent to this case." In...

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16 cases
  • White v. Lock
    • United States
    • West Virginia Supreme Court
    • June 26, 1985
    ...in the instruction refused is adequately covered by another instruction or other instructions given.' Syl. pt. 2, Jennings v. Smith, 165 W.Va. 791, 272 S.E.2d 229 (1980), quoting, syl. pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966)." Syl. pt. 2, McAllister v. Weirton Hospital ......
  • McAllister v. Weirton Hosp. Co.
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    • November 10, 1983
    ...stated in the instruction refused is adequately covered by another instruction or other instructions given." Syl. pt. 2, Jennings v. Smith, 272 S.E.2d 229 (W.Va.1980), quoting, syl. pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 3. "Instructions must be read as a whole, and if, when ......
  • Dept. of Transp. v. Parkersburg Inn
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    ...Errors that are harmless or do not affect the substantial rights of the parties do not require reversal." Jennings v. Smith, 165 W.Va. 791, 795, 272 S.E.2d 229, 231 (1980).24 IV. CONCLUSION We affirm the circuit court's denial of the Inn's motion for a new Affirmed. Justice ALBRIGHT not par......
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    ...in the instruction refused is adequately covered by another instruction or other instructions given.' Syl. pt. 2, Jennings v. Smith, 165 W.Va. 791, 272 S.E.2d 229 (1980), quoting, syl. pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966). Syl. pt. 2, McAllister v. Weirton Hospital C......
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