Jimco Supply Co., Inc. v. Neal, 14909

• Decision Date: 05 May 1981
• Docket Number: No. 14909,14909
• Citation: 166 W.Va. 794,277 S.E.2d 626
• Court: West Virginia Supreme Court
• Parties: JIMCO SUPPLY COMPANY, INC. v. Robert E. NEAL, d/b/a Consolidated Energy Company v. Russell COLEMAN, Ben C. Keith, and John McCoy, etc.

Page 626

277 S.E.2d 626

166 W.Va. 794

JIMCO SUPPLY COMPANY, INC. v. Robert E. NEAL, d/b/a Consolidated Energy Company v. Russell COLEMAN, Ben C. Keith, and John McCoy, etc.

No. 14909.

Supreme Court of Appeals of West Virginia.

May 5, 1981.

Syllabus by the Court

1. "Upon a motion for a directed verdict, all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed." Syl. pt. 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973).

2. "A motion to reopen a case to permit the introduction of further evidence is addressed to the sound discretion of the trial court and the exercise of such discretion is not subject to review by an appellate court unless there has been an abuse thereof." Syl. pt. 4, Adams v. Sparacio, 156 W.Va. 678, 196 S.E.2d 647 (1973).

Pauley, Curry & Thaxton, Arden J. Curry, II and James M. Sturgeon, Jr., Charleston, for appellant.

Veneri & Burkett, Randall L. Veneri and Billy E. Burkett, Princeton, for appellees Neal and Keith.

PER CURIAM:

This is an appeal by Jimco Supply Company (hereinafter referred to as Jimco) from a final order of the Circuit Court of Mercer County entered on October 30, 1979, wherein the court granted a directed verdict for the defendant in a civil action instituted by Jimco. Jimco alleges that the circuit court erred in doing so. We agree.

On November 23, 1977, Jimco Supply Company brought suit in the Circuit Court of Mercer County against Robert E. Neal, d/b/a Consolidated Energy Company. The action was based on an account due in the amount of $21,272.39 for the rental of mining equipment by Jimco to the defendant.

Mr. Neal filed an answer in the form of a general denial. He also filed a third-party complaint against Russell Coleman, Ben Keith and John McCoy averring that the plaintiff (Jimco) filed a complaint against him, and that "at the time the alledged (sic) account was made, the defendant and third party plaintiff was in partnership with the third party defendants." He also averred that "(i)n said Complaint, plaintiff alledges (sic), inter alia, that the defendant owes unto it the sum of $21,272.39; that the defendant and third party plaintiff alledges (sic) that if he be compelled to pay said sum of money to the plaintiff herein ... that he has and hereby asserts a right of indemnity over and against the third party defendants for any recovery that might be had by the plaintiff against the defendant and third party plaintiff ... in that the said defendant and third party plaintiff was in partnership with said third party defendants at said time." Jimco subsequently filed a complaint against the third-party defendants, the basis of which was the same account upon which the action against Robert Neal was instituted.

Trial before a judge without a jury was held on February 28, 1979. Jimco called three witnesses in support of its case. Steve Tibbs, a sales representative for Jimco, testified that he rented the mining equipment in question to Consolidated Energy Company. He discussed the needs of the company with Mr. Coleman, Mr. McCoy and Mr. Neal and when he filled out the credit information sheet, Mr. Neal listed himself as president and Mr. Coleman as vice-president. On cross-examination, the witness was shown three exhibits (a general ledger, order form, and lease agreement) which were records of Jimco Supply Company pertaining to an account with Consolidated Energy Company.

The plaintiff's second witness was James Shafer, president of Jimco. Mr. Shafer testified about the company's bookkeeping procedures and numerous invoices and statements were admitted into evidence showing amounts due by Consolidated Energy Company for the rental of particular equipment. Mr. Shafer also testified that he personally dealt with Mr. Neal, Mr. McCoy and Mr. Coleman and that although monthly statements were sent to Consolidated Energy Company, only one payment was made on the account. That was a check signed by Mr. Keith in the amount of $200.00. In addition, the witness testified that at one point he made arrangements to meet with Mr. Neal concerning Consolidated Energy Company's unpaid bill. When they met, Mr. Neal indicated that the bill would be paid as soon as his mining work was finished and the money was available.

Jimco's final witness was the defendant and third-party plaintiff, Robert E. Neal. Mr. Neal admitted that in 1976 he was doing business as Consolidated Energy Company and then testified that Consolidated Energy Company was a corporation. He did not recall the date the corporation was chartered, but did say that he and the third-party defendants were the stockholders of the corporation. Mr. Neal also testified that it was Russell Coleman who made the arrangements with Jimco Supply Company's representative for the rental of the construction equipment to Consolidated. When asked what his position was with the company, Mr. Neal testified, "Well, I just more or less in the corporation to help them out and try to mine some coal and make some money like a lot of other people do."

At the conclusion of this testimony Jimco's counsel offered to submit information at the court's discretion showing that Consolidated Energy Company was not a corporation. Defendant Neal then moved for a directed verdict on the bases that: (1) the plaintiff failed to show that Robert Neal as an individual bought anything from Jimco Supply Company; (2) there was no evidence that Robert Neal or Consolidated Energy Company owed Jimco Supply Company any specific amount of money; and (3) there was never a demand for the court to grant judgment in a dollar amount. The court took the motion under advisement.

Prior to the court's decision, Jimco filed several written post-trial motions, including a motion to reopen the proceedings and a motion to strike the testimony of Mr. Neal, particularly his statement that Consolidated Energy Company was a corporation. In connection with the motion to reopen which claimed unfair surprise at the defendant's testimony, Jimco filed an...