McCullough v. Clark

• Decision Date: 22 February 1921
• Docket Number: 4117. [a1]
• Citation: 88 W.Va. 22
• Court: West Virginia Supreme Court
• Parties: John W. McCullough v. H. E. Clark

88 W.Va. 22

John W. McCullough

v.H. E. Clark

4117. [a1]

Supreme Court of Appeals of West Virginia.

Submitted February 8, 1921.

Decided February 22, 1921.

1. Appeal and Error Verdict on Conflicting Evidence Not Set Aside Unless Indicating Passion or Prejudice.

The verdict of a jury, based upon conflicting evidence, will not be set aside, unless the evidence so strongly preponderates against the verdict as to indicate that the jury was moved by passion, prejudice, or some other improper influence. (p. 30).

2. Same Verdict Presumed Based on Evidence; Verdict for Damages Will Not be Disturbed if Within Estimates in Testimony.

There is a presumption that the verdict of a jury is based upon a fair consideration of all matters presented to it, and if in an action for damages for breach of a contract the evidence does not certainly fix the amount of such damages, but depends upon varying amounts fixed by different witnesses, the verdict will not be disturbed if the amount found is within the estimates given in the testimony. (p. 37).

3. Same Jury Will Not be Considered to Have Included Items Not Supported by Evidence.

In an action for damages for breach of contract it will not be held that the jury included an item not supported by the evidence and rejected in toto another finding support in the evidence, upon the sole ground that to include such improper item with others found by the jury will make the exact amount of the verdict, while to exclude such item and include the whole of the item finding support in the evidence would make an amount in excess of the verdict. (p. 40).

4. Sales Measure of Damages for Breach of Contract to Deliver Personal Property at Definite Time Stated.

Where, in an action for breach of a contract, it appears that the plaintiff was entitled to receive certain personal property at a definite time, his measure of damages is the value of such property at the time and place it should have been delivered to him, less any amount remaining unpaid upon the purchase money, with interest thereon to the date of the verdict. (p. 43).

5. Trial Instruction Defining "Preponderance of Evidence" Held Not Improper.

An instruction properly defining the term "preponderance of the evidence" is not improper in a case where the jury has been instructed that certain elements must be proven by a preponderance of the evidence, even though there are other elements which the jury have been instructed must be proved by evidence clear, full and convincing. (p. 44).

6. Appeal and Error Improper Argument Not Considered in This court will not consider errors predicated upon the abuse of counsel of the privilege of argument, unless it appears that the complaining party asked for and was refused an instruction to the jury to disregard the improper remarks, and duly excepted to such refusal. (p. 47)

Error to Circuit Court, Upshur County. Action by John W. McCullough against H. E. Clark. Judgment for plaintiff, and defendant brings error.

Affirmed.

Samuel T. Spears and Talbott & Hoover, for defendant in error.

Young & McWhorter and J. M. N. Downes, for plaintiff in error.

Kitz, President:

The defendant by this writ of error seeks reversal of a judgment against him for the sum of $203,907.28, for damages for the breach of an alleged contract for the sale of certain corporate stock.

Plaintiff and defendant for many years had been business associates, and in the spring of 1915 were jointly interested in lumber operations in the State of West Virginia, carried on in the name of Virginia Lumber Company, and in like operations in Virginia, Tennessee and North Carolina, conducted in the name of Damascus Lumber Company. In addition to these companies, in which they had a common interest, there were some other concerns in which they were likewise jointly interested, but which are only incidentally involved in this litigation. In addition to the interest which the defendant had in common with the plaintiff, he was largely interested in many other concerns with which the plaintiff had no connection. For a few months prior to April, 1915, the Virginia Lumber Company and the Damascus Lumber Company, owned and controlled by the parties to this suit, were having trouble in carrying on their affairs. The plants had, to a large extent at least, closed down, and the parties were having difficulty in securing sufficient funds to meet the outstanding obligations. Many conferences were had between McCullough and Clark with a view of devising means to put these concerns on a sound financial basis. In addition to needing money for the purpose of taking care of these companies, Clark also needed considerable sums of money to take care of his other interests. It sufficiently appears that both of the parties had plenty of assets to take care of their liabilities, their difficulty being in providing liquid assets as the same were needed. McCullough claims that after a conference lasting over several days Clark proposed to him that he would sell his interest in the Virginia Lumber Company for the sum of $325,000.00, and in the Damascus Lumber Company for the amount that he had invested in that company, less such amounts as had been withdrawn therefrom by him, with interest compounded every four months; or, that he would buy McCullough's interests in these companies on the same basis, the proposition being indivisible, contemplating the purchase or sale of both properties at the same time; that he considered this proposition and came to the conclusion that he and his associates could handle the same, and on the 24th of April, 1915, in the city of Philadelphia, accepted Clark's proposition to sell on the above terms; that this was late on Saturday evening, and for that reason the matter of preparing the formal contracts was deferred until the next Monday; that he communicated with Mr. Bowers, who was interested with him in the Virginia Lumber Company proposition, and procured his attendance at Philadelphia on Monday with a view to having him render financial assistance in making the purchase; that he and the defendant Clark spent a large part of the next day, Sunday, the 25th of April, at the Manufacturer's Club, and talked over to a considerable extent the transaction which had been concluded on the day before; that on Monday morning Mr. Bowers arrived and he explained to Bowers what he had done, and Bowers agreed to take some further interest in the "Virginia Lumber Company upon the basis of the purchase made by McCullough; that they then went to Clark's office for the purpose of putting their agreements in writing; that Clark was informed that Bowers would be jointly interested with McCullough in the Virginia Lumber Company proposition, but would not take any interest in the Damascus purchase, for which reason it would be necessary to make separate contracts covering the sale of his interest in each of these companies; that this was satisfactory to Clark, and they began the preparation of a contract in writing, which is introduced into the record, evidencing the sale of Clark's interest in the Virginia Lumber Company to McCullough and Bowers. It appears that the parties were engaged in the preparation of this contract practically the whole of the day, Bowers and McCullough being of the opinion that it was about five o'clock when the same. was completed and executed by the parties, and Clark stating that in his opinion it was even later than that. After this contract was concluded, McCullough claims that he then called upon Clark to prepare the contract showing the sale of his interest in the Damascus Lumber Company to him, and that Clark replied that it was then late, and that he had some important mail requiring attention, and asked him and Bowers to go to the hotel, and when he had attended to his pressing affairs he would come down and join them at supper. In this he is corrobrated by Bowers. He and Bowers did leave Clark's office and went to the Walton Hotel where they awaited Clark's appearance. Sometime later Clark, in accordance with his promise, did appear, and the three had supper together. McCullough says that while they were at the hotel, and during the course of the meal, he took up with Clark again the matter of the preparation of a formal written contract evidencing his purchase of Clark's interest in the Damascus Lumber Company, and that, Clark then advised him that it would be impossible to prepare this contract until they had had an audit, made of the Damascus Lumber Company's accounts, and the amount coming to him thus determined; that he, McCullough, insisted that this was not necessary; that in the written contract the consideration could be specified in a general way, and could thereafter be determined by an audit made of the company's business; that Clark protested against preparing the contract in this way, and that some heated conversation followed; and that instead of preparing the Damascus Lumber Company contract the next morning, as McCullough insisted should be done, Clark left the city. As to what happened at the hotel on this occasion, McCullough is corroborated by Bowers, who was present and heard the conversation. Clark contends that McCullough never mentioned to him the matter of preparing any contract for the sale of his interest in the Damascus property at his office after the contract evidencing the sale of the Virginia Lumber Company interests had been concluded, but he admits that McCullough did insist on the preparation of this contract at the Walton Hotel, but contends that he then and there repudiated the idea that he had made any sale of his interest, and told McCullough that when they had an audit made and found how they stood he would then be willing to consider a proposition for the sale of his interest. McCullough and Bowers interested some other parties with them in the Virginia Lumber Company purchase, and for the next few months the parties seem to have been pretty closely engaged in concluding the...