Kinsey v. Carr

• Decision Date: 20 November 1906
• Citation: 55 S.E. 1004,60 W.Va. 449
• Parties: KINSEY . v. CARR et al.
• Court: West Virginia Supreme Court

55 S.E. 1004

60 W.Va. 449

KINSEY .

v.CARR et al.

Supreme Court of Appeals of West Virginia.

Nov. 20, 1906.

Rehearing Denied Jan. 10, 1907.

1. Appeal—Trial by Court—Review.

When a case is tried by a court in lieu of a jury, its finding will cot be disturbed by this court unless it is against the plain and decided preponderance of the, evidence, or wholly without evidence to support it.

2. Payment—Evidence.

The plea of payment is sustained by the evidence, and the court committed no error in finding for the defendants.

Poffenbarger, J., dissenting.

(Syllabus by the Court.)

Error from Circuit Court, Wood County.

Action by T. S. Kinsey against W. M. Carr and others. Judgment for defendants, and plaintiff brings error. Affirmed.

H. P. Camden and W. G. Peterkln, for plaintiff in error.

Smith D. Turner, for defendants in error.

SANDERS, J. The plaintiff, T. S. Kinsey, brought an action of assumpsit in the circuit court of Wood cqunty against W. M. Carr, A. S. Carr, Percy H. Carr, Wm. B. Farris and others, partners as the Carr Oil Company. By consent of the parties, the action was abated as to all of the defendants except the three Carrs, who plead the general issue, and payment. The case was, upon the joint motion of the plaintiff and defendants, referred to a commissioner to take and state an account between the parties. Under the order of reference the commissioner reported adversely to the plaintiff, to which report he excepted, but the court overruled the exceptions and entered judgment for the defendants, and this judgment is now here for review on writ of error.

The commissioner finds and reports from the evidence that the plaintiff is estopped to recover the amount claimed by him, and it is argued by counsel for the plaintiff that the commissioner had no right to pass upon the question as to whether or not the correct balance found by him was due or not due to plaintiff, because of the estoppel set up by the defendants, but that the sole purpose of the reference was to take and state an account between the parties. As to whether or not this contention Is tenable, we find that it Is unnecessary to decide, because, by agreement of parties, the case was submitted to the court in lieu of a jury, upon the commissioner's report, the exceptions of the plaintiff thereto, upon the pleadings in the case, and the evidence returned by the commissioner in support of his report. Therefore, granting that the commissioner did not file such report as was required by the order of reference, and by section 10 of chapter 129 of the Code of 1899 [Ann. Code 1906, § 3921], yet if the evidence filed with the report, and upon which the case was heard, is sufficient to support the judgment, we could not reverse, because the commissioner passed upon this evidence, and found that the plaintiff was estopped. The evidence taken by the commissioner, and upon which he bases his report, was returned and filed with his report, and was, by agreement, considered by the court. The report of the commissioner as to such matters properly referred to him, and upon which he could properly report, is only prima facie correct It may be overthrown by evidence, and when all the evidence Is in, it is for the court to determine whether or not it Is correct. When a commissioner does not report in obedience to the order of reference, or as provided by the statute, not deciding, however, that the commissioner has not done so, the court could recommit the case to him. But where it is not recommitted, but submitted on the report, and the evidence returned with it, the court will look to the evidence, together with the report, and decide the right of the case therefrom. And, again, the plaintiff did not except to the report on the ground that the commissioner did not obey the order, or that he reported conclusions of law and passed upon conflicting evidence, but seeks to raise this question here for the first time. This brings us to the question as to whether or not the judgment is supported by the evidence. The evidence is somewhat conflicting, but it will not be necessary to point out wherein this is so, because we are, upon a review of the judgment, under the rules of law, required to disregard all the evidence which is in conflict with that which goes to establish the contention of the defendants, unless such conflicting evidence clearly and plainly preponderates. The same rule applies here as that by which a demurrer to the evidence is tested. Before we can reverse the finding of the lower court, the judgment must be without sufficient evidence to support it, or plainly and manifestly against the decided weight and preponderance of the evidence. Therefore, if we find there is sufficient evidence to support the judgment, and that the material conflicting evidence does not plainly preponderate, we must sustain the court's findings. Buck v. Newberry, 55 W. Va. 681, 47 S. E. 889; Barrett v. Raleigh C. & C. Co., 55 W. Va. 395, 47 S. E. 154; State v. Sullivan, 55 W. Va. 597, 47 S. E. 267; Fulton v. Crosby & Beckley Co., 57 W. Va. 91, 49 S. E.1012. Numerous other cases might be cited to the same effect, but It is deemed unnecessary to do so.

We will give briefly the material facts which the court below could have found from the evidence: During the years 1897 and 1898 the Carr Oil Company, owning and operating certain leaseholds for oil and gas near Cornwallis, in Ritchie county, engaged T. S. Kinsey to drill for It certain oil wells. Kinsey, at the same time, had a contract with Stuart & Young, of Chicago, for drilling on the Wells farm, in Ritchie county. Stuart & Young had a contract with the Carr Oil Company by which they were to finance that company, so that, for all the work which Kinsey did under these two contracts, which were separate and distinct, he was paid by Stuart & Young, and they paid him for all the work done by him upon the Wells farm. Stuart & Young owned a three-eighths interest in the Carr Oil Company. In 1898 Kinsey finished his work at Cornwallis, at which time the Carr Oil Company was indebted to him, on account of work done at that point, between $12,000 and $13,000. In July of that year Kinsey entered into a contract with A. S. and W. M. Carr, by which he was to drill certain oil wells at Sugar Grove, Ohio. This contract was later assumed by Stuart & Young, who were to pay Kinsey for the work done under it. At this time Kinsey had outstanding two notes for $500 each, payable to Ireland & Hughes, of Pittsburg, Pa.; one due July 25, and the other August 25, 1898. Prior to the time of leaving Cornwallis, Kinsey had spoken to W. M. Carr relative to these notes, saying that the Carr Oil Company must take care of them. He also told Carr that he must have $1,000. Carr told him to write to the company in Chicago, and that, doubtless, the matter would be attended to. Kinsey did as he was directed, and, on September 2d, received from Stuart & Young a check for $1,000; also, on the same date, he received from them a letter, stating that the two notes had been taken care of. In this letter no direction was given as to how the money should be applied. Kinsey entered a credit on his books to the Carr Oil Company for the first $500 note, but made no entry as to the other note or the $1,000 cash item. He says he intended that the whole amount should be entered as a credit to the Carr Oil Company, and he thought this had been done. Early In the month of September, Kinsey told W. M. Carr that the Carr Oil Company had taken care of the two notes, and had also paid him $1,000 cash. On the 28th day of September, 1898, Stuart & Young, Wm. B. Farris, and A. S. and W. M. Carr entered into a contract by which the Carrs and Farris bought the interest of Stuart & Young in the Carr Oil Company, subject to the debts of said company, and, for themselves and their associates, released Stuart & Young of all claims which they had against them. On September 30th, following, Kinsey received a letter from Stuart & Young, stating that the $2,000—$1,000 paid to Ireland & Hughes and the $1,000 cash—were to be credited to their account Thereupon Kinsey erased the $500 credit which he had given to the Carr Oil Company, and later informed the Carrs that he had received directions from Stuart & Young as to how the $2,000 should be applied, and that the amount was not a credit on the Carr Oil Company's account. The direction of Stuart & Young made to Kinsey on September 30th was to apply the $2,000 as a credit on the work done at Sugar Grove. By the terms of the contract with Kinsey, they were not required to pay for wells until they were completed. At the time that Stuart & Young paid these amounts, early in September, there were no wells completed on the Sugar Grove work—hence no money was really due Kinsey on that work at that time. It Is the custom among oil people that wells are never paid for until completed. A dispute arose as to whether or not the $2,000 had been credited by Kinsey upon the Carr Oil Company's account. In 1901, by virtue of a settlement between them, the Carrs paid to Kinsey all that was found due to him from the Carr Oil Company, with the exception that no agreement was reached as to the item of $2,000; and, the parties not coming to any conclusion in regard to it, this action was instituted for its recovery. While the court overruled the exceptions of the plaintiff to the commissioner's report, which found that the plaintiff was estopped, yet it does not appear upon what ground the court predicated its decision—whether upon the ground of estoppel or upon some other ground. Nor is it material what reasons it gave for its decision, if the judgment Is supported by the evidence. The court may have given the wrong reason, still, if the plaintiff, from all the evidence, was not entitled to recover, the judgment will not be reversed, simply because the decision was put upon the ground of estoppel when It appears there was no estoppel, when there is another...