Laraway v. Croft Lumber Co.
| Decision Date | 19 January 1915 |
| Citation | 75 W.Va. 510 |
| Parties | Laraway v. Croft Lumber Company. |
| Court | West Virginia Supreme Court |
Where a demurrer to faulty counts in a declaration has been overruled, the appellate court will not reverse for the error if all the evidence adduced for the plaintiff was admissible under a good count, (p.511).
By the statute, Code 1913, ch. 125, sec. 33, it is not necessary in any action to aver that the cause of action is within the jurisdiction of the court, (p. 511).
Eefusal on the cross-examination of a witness to admit an affidavit formerly made by him, tendered for the purpose of contradiction, is not error when the affidavit is not inconsistent with the testimony of the witness, (p. 511).
Failure to object within a reasonable time to an account rendered amounts only to a rebuttable admission, not to an estoppel. (p. 512).
An instruction tending to mislead the jury from proper issues in the case should be refused, (p. 512).
Error to Circuit Court, Upshur County. Action by A. B. Laraway against the Croft Lumber Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Young & McWhorter, for plaintiff in error. J. M. N. Doivnes, for defendant in error.
Robinson, President:
This is an action in assumpsit to recover money for work done and for goods and chatties sold. Plaintiff has judgment, and defendant prosecutes error.
The judgment follows a verdict of the jury based upon the consideration of conflicting oral testimony of witnesses, The finding o ' the jury was within their province. From the record we would not be warranted in saying that the verdict was contrary to the evidence.
It is submitted that the demurrer to the declaration should have been sustained as to some of the counts. But the common counts are unquestionably good. All the evidence that was admitted was admissible under the common counts. The ease that was proved, was provable under them. Then, though it be that the demurrer ought to have been sustained as to some of the other counts, there is no reversible error. Many decisions are here in point, but it suffices to set forth the following: "Where a declaration contains two or more counts, and there is a demurrer to each count; some of the counts are bad, and the demurrer is overruled as to all: the evidence is all certified, and the case is brought to this court on a writ of error; Held: Notwithstanding it was error to overrule he demurrer to the bad counts, still, if the court is satisfied that all the plaintiff's evidence was admissible under the good counts, it will not reverse the judgment of the trial-court for such error." Hood v. Block, 29 W. Va. 244.
The point insisted on that no venue was laid in the declaration is not true as to the common counts. Besides, the statute distinctly provides: "It shall not be necessary in any action to aver that the cause of action arose or that the matter is within the jurisdiction of the court." Code 1913, ch. 125, sec. 33.
On the cross-examination of a witness, defendant sought to contradict him by the introduction of a copy of an affidavit he had formerly made. The court refused to admit the affidavit, Defendant submits this was error. The affidavit, it seems, could well have been admitted for elucidation of defendant's theory of the case. But the affidavit contains no materia! contradiction of the witness. For its exclusion, we shall net reverse. Viewing the case as a whole, we are of opinion that the admission of the affidavit would not have changed the finding of the jury. Nothing which the witness had stated in the affidavit is inconsistent with what he stated in his testimony. We must assume that the jury were intelligent. 'Faking them as such, we know that if the affidavit had been admitted, they could have given no weight to it as a m ater i a 1 contrad i c ti < m.
Defe...
To continue reading
Request your trial