Kap-Tex, Inc. v. Romans

• Decision Date: 04 December 1951
• Docket Number: No. 10391,KAP-TE,I,10391
• Citation: 136 W.Va. 489,67 S.E.2d 847
• Parties: nc. v. ROMANS et al.
• Court: West Virginia Supreme Court

Page 847

67 S.E.2d 847

136 W.Va. 489

KAP-TEX, Inc. v. ROMANS et al.

No. 10391.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1951.

Decided Dec. 4, 1951.

Syllabus by the Court.

1. 'In an action at law, a verdict of a jury which is without sufficient evidence to support it, or plainly against the decided

weight and preponderance of conflicting evidence, should upon proper motion be set aside and a new trial awarded.' Point 1. Syllabus, Coalmer v. Barrett, 61 W.Va. 237 .

2. An appellate court will not reverse the action of a trial court in setting aside a verdict of a jury and awarding a new trial, unless such action is plainly erroneous.

A. J. Lubliner, Bluefield, Roscoe H. Pendleton, Princeton, for plaintiff in error.

Arthur F. Kingdon, Bluefield, for defendant in error.

HAYMOND, Judge.

In September, 1949, the plaintiff, Kap-Tex, Inc., instituted this action of detinue in the Circuit Court of Mercer County, to recover from the defendants, Lacy Romans and Paul C. Trilli, partners trading as Bluefield Sportswear, the possession of certain articles of personal property consisting of sewing machines and attachable equipment of the alleged value of $2,500 delivered to the defendants in May of that year. To the declaration of the plaintiff, the defendants filed their plea of non detinet and an additional special plea. In their special plea the defendants claim from the plaintiff the unpaid sum of $250 for work, labor, and rental on, and unkeep, maintenance, and storage of, the property described in the declaration and the additional unpaid sum of $1,045.06, for labor performed, in part by the use of the property, in making certain articles of wearing apparel for the benefit of the plaintiff at its instance and request. The two claims for money due and owing from the plaintiff, set forth in the special plea, aggregate $1,295.06, and the defendants assert a lien upon the property and the right to retain possession of it until the total amount of their claims is paid by the plaintiff. Upon the trial of the case, on January 3, 1950, the jury returned a verdict for the defendants, which the trial court, on motion of the plaintiff, set aside on August 18, 1950. To the order setting aside the verdict and awarding the plaintiff a new trial this Court granted this writ of error upon the petition of the defendants.

The principal questions presented are questions of fact and their proper determination depends upon the nature of certain transactions, during the period from April or May, 1949, until the institution of this litigation, between Paul C. Trilli, acting in behalf of the defendants and Morris Kaplan, and the capacity in which Kaplan acted, whether for Kap-Tex, Inc., Pace Setter Fashions, Inc., or himself, in those transactions.

Kaplan, a resident of New York City, is the president of, and a director and the principal stockholder in, the plaintiff, Kap-Tex, Inc., a New York corporation which was chartered by that State on December 16, 1946. He is also the president of another New York corporation known as Pace Setter Fashions, Inc., which was chartered by that State on February 28, 1949. In addition he owns and operates a business which manufactures aprons for men and women. Kap-Tex, Inc., engages in the business of manufacturing aprons, diapers, bloomers and quilt covers, and Pace Setter Fashions, Inc., engages in the business of manufacturing dresses. Each corporation has separate books and bank accounts and has different stockholders, but both of them and Kaplan operated from and used the same office at Nos. 113 to 119, Prince Street, in New York City, from which place numerous letters on separate stationery of Kap-Tex, Inc., Pace Setter Fashions, Inc., and Morris Kaplan, bearing the signature of Kaplan, were sent from time to time to the defendants as Bluefield Sportswear at Bluefield, West Virginia, where the defendants, since March 7, 1949, have been engaged in the business of manufacturing garments, chiefly dresses, by putting together material which has been cut according to pattern into the different parts required to complete various articles of wearing apparel.

Sometime prior to February 25, 1949, the defendant, Trilli, being desirous of obtaining material to be used in the business of the partnership, upon receipt of a letter from a man named Arnold, who appears to have been connected with Pace Setter Fashions, Inc., and with Kaplin, went to New York and there met Arnold who introduced him to Kaplan. As a result of Trilli's visit a contract was entered into between Trilli for the partnership and Pace Setter Fashions, Inc., by which the defendants received various deliveries of material from Pace Setter Fashions, Inc., at different times from February 25, 1949, until June 1, 1949, which appears to be the date of the last delivery of materials by Pace Setter Fashions, Inc. In each instance, shipments of the materials were confirmed by letters addressed to Bluefield Sportswear, written on stationery of Pace Setter Fashions, Inc., or Morris Kaplan, and signed by Kaplan or by Arnold. Part payments were made for the work performed by the defendants in making various garments for Pace Setter Fashions, Inc., by its checks which were signed by Kaplan, who was also its treasurer. As already pointed out the defendants claim that a balance of $1,045.06 is due, unpaid and owing to them and they filed an itemized statement of this account against Pace Setter Fashions, Inc., showing the separate charges and the various credits given Pace Setter Fashions, Inc., as an exhibit with the testimony of the defendant Trilli.

During the course of these transactions and while the defendants were performing the work under the contract, Pace Setter Fashions, Inc., complained to the defendants that it was not receiving the completed garments in sufficient quantities in time to enable it to fulfill its commitments to its customers. With respect to this complaint Trilli contended that the delay was due to the action of Pace Setter Fashions, Inc., in sending as many as fifteen different styles of garments for manufacture instead of the two styles called for by the contract and that the defendants could not profitably adapt their work to so many different types. As a result of these differences, Trilli, at the request of Kaplan, met him at his office in New York sometime prior to May 2, 1949. At that meeting, according to the testimony of Trilli, the principal witness for the defendants, Kaplan told him that the trouble resulted because Trilli did not have the proper machinery; that Kaplan had machinery which he was not using; that he would show it to him; that Trilli told Kaplan that Trilli did not have any money to buy any machinery; that Kaplan replied that he would sell it to Trilli so cheaply that he would not know he was buying it; that Kaplan would deduct from fifty to sixty dollars each week from Trilli's bills for labor; that Trilli replied: 'Well, it's all right. It looks pretty good'; and that Kaplan said: 'All right, I'll pack them up right away and send them to you.' Trilli also testified that no price was then mentioned; that at that time he had never heard of a company called Kap-Tex, Inc.; that Kaplan was the only person he talked with about the machines; and that Kaplan, the same man he dealt with for the material, shipped him the machines and the equipment.

After this meeting between Trilli and Kaplan, the six machines and the equipment involved in this action, were shipped from 115 Prince Street, New York City, to Bluefield Sportswear, at Bluefield, by Smith Transfer under three separate bills of lading, copies of which were introduced in evidence with the testimony of Morris Kaplan which was taken by deposition and filed and read in behalf of the plaintiff. These bills of lading bear the respective dates of May 2, May 4, and May 6, 1949, and show that the property described in each, consisting of sewing machines and equipment, was received from Kap-Tex, Inc., by Smith Transfer, as carrier, consigned to Bluefield Sportswear at Bluefield, West Virginia.

The plaintiff introduced in evidence as an exhibit with the deposition of Kaplan a letter dated May 6, 1949, written on stationery of Kap-Tex, Inc., addressed to Bluefield Sportswear, 2900 Bluefield Avenue, Bluefield, West Virginia, signed by Morris Kaplan, in connection with the sale and the shipment of the machines. The body of this letter, the receipt of which is admitted by Trilli, is in these words: 'We have sent you via Smiths Transfer 6 sewing machines and five stands and motors, one stand and motor still coming to you. It is agreed that all six machines together with the six stands and motors remain our property until you have paid $2500.00 for them, the money to be paid a little at a time by being deducted from labor bills. We have also sent you one case of parts and accessories.' On May 6, 1949, a bill for the property shipped, bearing that date, written on Kap-Tex, Inc., stationery and addressed to Bluefield Sportswear, was sent from New York to Bluefield Sportswear, at Bluefield, West Virginia. This account described the property and stated that 'These machines remain property of Kap-Tex Inc. until fully paid for by Bluefield Sportswear.'

Concerning the conversation between Kaplan and Trilli in Kaplan's office in New York relative to the machines, Kaplan testified that Trilli told him that he could perform the work he was doing for Pace Setter Fashions, Inc., more quickly if he had additional machinery, and asked Kaplan if he would sell him certain machinery; that Kaplan said he would if Trilli would pay for it and that until the machines were paid for they would be the property of Kap-Tex, Inc., the owner of the machines; that Trilli asked him the price of the machines and Kaplan informed Trilli that he would 'have to pick them out with me'; that they then 'picked out' the machines; that Kaplan told Trilli that the...