Lord v. Henderson
| Decision Date | 16 March 1909 |
| Citation | 65 W.Va. 321 |
| Court | West Virginia Supreme Court |
| Parties | Lord & McCracken v. Henderson, et al. |
Where a contract, though in writing, has been fully executed, and nothing remains to be done by defendants under it except payment to plaintiffs of the price stipulated for the work and labor done by them under the contract, in an action of assumpsit to recover the same, a special count on the contract is unnecessary; recovery may be had on the common counts in assumpsit, and the bill of particulars filed therewith. (p. 324.)
This Court will not reverse a judgment of the circuit court, for sustaining objections to questions propounded to a witness on the trial, unless it affirmatively appears from the record what the answers of the witness thereto would have been, or it is shown what was proposed to be proven by the witness in response to the questions, and that the party complaining has been prejudiced by the rulings of the court. (p. 325.)
If at the close of plaintiffs evidence in a trial before a jury, defendants move to exclude all of plaintiffs evidence relating to certain specific matters in controversy or items in the bill of particulars filed, and if after their motion has been overruled defendants proceed with the trial and offer evidence on the same matters in issue, they will be deemed to have waived their motion to exclude, and the rights of the parties must then be tested by reference to all the evidence in the case. (p. 326.)
Error to Circuit Court, Randolph County. Action by Lord & McCracken against S. S. Henderson and others. Judgment for plaintiffs, and defendants bring error.
Reversed.
Talbott & Hoover, for plaintiffs in error. W. B. Maxwell, for defendants in error.
Miller, President:
In an action of assumpsit, on the common counts and a special count, with bill of particulars, the plaintiffs obtained a verdict and judgment against defendants for eight hundred and seventyfive dollars. In the special count a contract in writing, between plaintiffs and defendants, dated November 7, 1903, was alleged, whereby, in consideration of the prices stipulated to be: paid them therefor, the plaintiffs contracted with defendants to pile, peel, properly cure and load on cars, according to railroad regulations, all the merchantable bark from green hemlock timber standing on lands of the defendants and to be designated by them; and to cut into suitable log lengths all the merchantable saw timber on said land from which bark could be peeled, and to deliver said logs either at convenient places for loading at the railroad of the defendants, or in a dam accessible to defendants saw mill; and also to cut, trim and deliver at defendants railroad, at a point suitable for loading same, all spruce pulp wood. The bark was to be paid for at the rate of $3.50, for every cord of two thousand pounds, the weight to be determined by the tannery weight. The logs were to be scaled by the defendants or a competent agent, by the Doyle or Scribner rule, before being sawed at defendants mill, and were to be paid for at the rate of $3.50 per thousand feet for spruce and hemlock, and $4.00 per thousand feet for hardwood logs. The pulp wood was to be paid for at the rate of $2.00 per cord of 128 cubic feet, and according to the measurements which the defendants should receive from the pulp company. In the bill of particulars filed defendants are charged by plaintiffs as follows: To cash, charged plaintiffs not received, $1,000.00; to 350, 000 feet spruce and hemlock timber cut and delivered, not accounted for, at $3.50 per thousand, $1,225.00; to damage done roads, $500.00; to damage done plaintiffs by taking timber nearest dam and railroad, $200.00; to tan bark in woods and at railroad burnt by negligence of defendants, $100.00.
Early in the trial below plaintiffs in proof of the first item of their account endeavor to show by the witness McCracken, that in their statement rendered for the month of October, 1903, defendants had shown as the balance due them at that time $6,103.60, and that in the statement for the month of November, 1903, they had brought down this balance as $6,500.98, a difference of $397.38. When plaintiffs counsel asked the witness whether he could explain why defendants had made this difference against his firm, he answered, "I cannot." The motion by defendants to exclude this question and answer was overruled. Immediately afterwards, however, when plaintiffs counsel asked the witness to state when he in fact began work for the defendants under the contract and why the written contract bore date of November 7, 1903, the objection by defendants counsel thereto was sustained. And thereafter, for a time at least, the court limited plaintiffs in their evidence to transactions subsequent to that date. Later when it began to appear that the evidence thns restricted might show an erroneous condition of the account between the parties, counsel for defendants, on cross examination of plaintiff McCracken endeavored to extend the investigation back of that date, and to show that although the contract bore date of November 7, 1903, it in fact was a mere reduction to writing of a prior verbal contract, under which the plaintiffs had been operating since about April, 1903. But objections thereto by plaintiffs counsel were sustained. The above ruling of the court on defendants motion to exclude the question and the answer thereto of the witness McCracken, relating to the difference in the balance shown in the statement of October, and that brought down in the statement of November, 1903, and the subsequent rulings of the court on the several questions propounded said McCracken on cross examination are made the subject of defendants bills of exceptions number two, three, four and five, relied on, which will be considered together.
These rulings of the court we think were based on the erroneous theory that plaintiffs were necessarily limited in their proof to the matters alleged in the special count. The allegations of the special count and the evidence on the trial show a contract fully executed on the part of the plaintiffs and that nothing remained to be done on the part of the defendants except to pay plaintiffs the balance, if anything, due them, and thai: the contract no longer remained executory. A special count therefore was unnecessary. The plaintiffs, if entitled to recover anything, were entitled to recover upon the common counts. Railroad Co. v. Lafferty, 2 W. Ya. 104; Railroad Co. v. Polly, Woods & Co., 14 Grat. 445; Tunnel v. Mayo, 7 Johns. 132; all cited with approval in Bannister v. Coal & Coke Co., 63 W. Va. 502, 507. In the latter case we quote from Tunnel v. Mayo, supra, that "where the party declares on a special agreement, seeking to recover thereon, but fails altogether, he may recover on a general contract, if the ease be such that, supposing there had been no special contract, he might still have recovered." We think therefore that the rulings of the court in so limiting the evidence of the parties was erroneous, and that the action of the court below overruling defendants motion to strike out, set forth in defendants bill of exceptions number two, was right.
But whether defendants were prejudiced by the ruling of the court, shown in their bills of exceptions numbered three, four and five, and whether they are in a position to take advantage thereof, presents quite a different proposition. We do not think tlury were prejudiced for several reasons: First, they were the first to obtain the adverse ruling of the court, and, as a general rule, ought not afterwards be heard to complain, when the same ruling was applied to them; second, it does not affirmatively appear what the answers to the several questions propounded to the witness McCracken, objections to which were sustained, would have been. There was no proffer of counsel in either instance, to show what was proposed to be proven by the witness. Wherefore we cannot say that the court committed error. Delmar Oil Co. v. Bartlett, 62 W. Ya. 700. If the witness had answered, as he likely would have done, that the transactions began prior to November 7, 1903, the result would have been to benefit or prejudice the defendant, depending on whether a larger or a smaller balance, or no balance in favor of the plaintiffs would be shown thereby. But as in the subsequent progress of the trial, all the transactions between plaintiffs and defendants seem to have gotten fairly before the jury, by the evidence of the witnesses and documentary evidence introduced, including a statement of all the accounts rendered by defendants to plaintiffs, and the tally sheets showing the scaling of the logs, we are unable to see that the rulings of the court were in any way prejudicial to the interests of the defendants.
The sixth bill of exceptions relied on relates to the testimony of plaintiff Lord, that at one time when at defendants mill he had observed the scaler employed in scaling logs make a mistake...
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