De Luz v. Board

• Court: West Virginia Supreme Court
• Citation: De Luz v. Board, 135 W.Va. 806, 65 S.E.2d 201 (W. Va. 1951)
• Decision Date: 15 May 1951
• Docket Number: No. 10329,10329
• Parties: DE LUZ et al. v. BOARD.

Page 201

65 S.E.2d 201

135 W.Va. 806

DE LUZ et al. v. BOARD.

No. 10329.

Supreme Court of Appeals of West Virginia.

Submitted April 25, 1951.

Decided May 15, 1951.

Syllabus by the Court.

Where in a trial of an action at law before a jury, the verdict returned is without evidence to support it, or is plainly wrong, it will be set aside by this Court, the judgment entered thereon reversed, and the case remanded for a new trial.

John H. Reed, Jr., South Charleston, for plaintiff in error.

Dewey B. Jones, Charleston, for defendants in error.

FOX, President.

The defendant, C. W. Board, doing business as the National Scale & Fixture Company, was, in May, 1949, engaged in the business of distributing store and restaurant fixtures, including refrigerating machines, with headquarters in Charleston, West Virginia, and the territory in which he operated included southern West Virginia. He had a number of men employed to sell on commission the equipment he handled, and about May, 1949, he employed the plaintiffs, Louis A. DeLuz and F. E. Newhouse, for that purpose. They continued to work for the defendant until the latter part of July or early August of that year, and made a number of sales. The commission agreed upon was twenty per cent as to all of the sales involved in this action, and on that point there is no conflict in the evidence.

This is an action of law, by way of notice of motion, instituted in the Circuit Court of Kanawha County, on January 7, 1950, to recover the sums claimed as balance due on commissions for sales made under the agreement above. The itemized statement filed with the notice of motion consists of thirteen items, representing that number of sales transactions on which the plaintiffs claim commissions due. There was the usual affidavit accompanying the notice of motion, and a counter affidavit filed by the defendant denying that any sum was due the plaintiffs. Defendant also filed his general issue plea, and a special plea denying that any commissions were due on the Brawley, Miller and Bloxson sales, included in the itemized statement aforesaid; and also filed his plea of recoupment claiming that there was due from the plaintiffs to him, on matters growing out of the transactions between them, the sum of $195.00. The case was tried on June 2 and 3, 1950. The plaintiffs admitted that $125.00 of the items set up in the plea of recoupment was due the defendant. The verdict of the jury was in favor of the plaintiffs for $683.34, being the full amount claimed by the plaintiffs, less the $125.00 so admitted to be due defendant, and which was obviously credited by the jury on the total claim filed. A motion to set aside the verdict was overruled, and judgment entered thereon June 14, 1950. On petition of the defendant, the case is here on writ of error.

There is some conflict in the evidence as to the exact terms of the contract between the plaintiffs and the defendant. There is no dispute as to the commission to be allowed, which was twenty per cent; and there appears to be no dispute that upon the consummation of a sale plaintiffs were to be paid fifteen per cent commission, but the plaintiffs do not admit that the defendant was authorized to retain the other five per cent. However, it is clear from the evidence that when the first sales were reported and settlement made for commissions, the defendant retained five per cent, which he says was retained to guarantee him against loss should purchasers fail to complete payments, it being admitted that most of these sales were made for part cash, and credit terms allowed, and that the remainder of the purchase price was secured under conditional sales contracts under the statutes of this State. It is not denied that when the settlement was made on the first sales, defendant retained five per cent for the purpose aforesaid, and explained its purpose; but the contention of the plaintiffs is that while they acquiesced in this procedure, it was agreed at that time that in case they terminated their connections with the defendant, they were then entitled to be paid any retained commissions in full. The defendant denies this and there is, therefore, conflict as to when the plaintiffs became entitled to full and complete settlement on sales made by them. The jury evidently accepted the contention of the plaintiffs in this connection, and we are not disposed to disturb their action. The evidence tends to show that as to only two of the items sued for had there been a complete payment of the purchase money due the defendant.

Before going to the merits of the case, which involves proof as to the account relied upon for recovery, there are two matters calling for comment. The first grows out of the following situation: The trial of the case began on June 2, 1950, and was partially tried on that day. The case had been so far developed that the trial judge apparently saw that it was very involved, and just prior to adjournment for the day, made the following statement:

'* * * Forgetting about the reserve, I assume all these commodities were sold for enough cash in the event they defaulted the deferred payments the seller would be fully protected onthe purchase price under the conditional sales contract law. It seems to me that you should be able to agree upon some terms of settlement because it is a difficult case to get the exact facts on and you really don't have much to litigate here. * * *'

He also stated:

'* * * It seems to me that from my understanding of conditional sales contract the defendant is not going to lose anything on that account. * * *'

He then went on to say they were entitled to a trial if they could not agree.

On continuing the trial, on June 3, exception was taken, by counsel for the defendant, to the statement of the court quoted above, whereupon the court told the jury:

'Well, that has nothing to do with the case, of course. I was simply trying to see if both partes could not adjust a difficult situation. Gentlemen of the jury, you understand, I am sure, what the Court had in mind. You will not give my remarks any consideration as having any bearing on the case we are trying. That was simply addressed to counsel in an effort to adjust this matter. If you cannot do that the jury will have to try to settle it for you, and the only reason for that remark was to try to see if we could not effect a compromise of something that is going to be very hard for a jury to understand, I think.'

The remarks of the court are alleged to be error, justifying reversal of the judgment in this case. We do not think they should be given that force and effect. A reading of all of the evidence in this case indicates that it would have been well for the parties to have followed the court's suggestion. It is true that though the court did assume that there would be no loss to the defendant on any of the sales made, and there is evidence in the case indicating that on some of the sales there would be a loss, it is quite clear that the court was not attempting in any way to influence the jury, and the remarks were directed to the litigants and their counsel, although in the presence of the jury. When attention was called to the possible effect of said remarks, the court promptly directed the jury not to consider them, and we do not think in these circumstances that we can say that the jury was presumed to have been influenced thereby in the verdict they returned.

The other question raised is what is termed a refusal of the court to permit the defendant to present instructions to the jury. At the end of the trial, the court made this statement:

'All right. You don't need instructions in this case. There are no matters of law...