Miller v. Johnson.

• Decision Date: 14 November 1916
• Citation: 79 W.Va. 198
• Court: West Virginia Supreme Court
• Parties: Miller v. Johnson.

79 W.Va. 198

Miller

v.Johnson.

Supreme Court of Appeals of West Virginia.

Submitted October 10, 1916.

Decided November 14, 1916.

1. Trial Taking Case from Jury Demurrer to Evidence.

On demurrer to evidence, if it be conflicting, judgment in favor of the demurree should be given, unless the evidence plainly and decidedly preponderates in favor of the demurrant on some decisive point. (p. 199).

2. Appeal and Error Review Question of Fact Demurrer to Evidence.

When the circuit court has found for the plaintiff on a demurrer to evidence by the defendant, this court will not disturb such finding, unless it is against the plain and decided preponderance of the evidence, or is wholly without evidence to support it. (p. 201).

Error to Circuit Court, Monroe County.

Action by 0. L. Miller against A. E. Johnson. Judgment for plaintiff, and defendant brings error.

Affirmed.

R. F. Dunlap and Jno. L. Rowan, for plaintiff in error.

C. A. Revercomb, R. L. Clark and R. Kemp Morton, for defendant in error.

Mason, Judge:

This is an action of trespass on the case to recover damages for alleged deceit, whereby it is alleged the defendant cheated the plaintiff in the sale of bank stock. The case is quite like the cases of Lowance v. Johnson, 75 W. Va. 784, and Hunter v. Johnson, 76 W. Va. 154. The defendant is the same person in all three cases, and some of the stock in the same bank is involved, and the facts are very similar. In all the cases the defendant was charged with selling by misrepresentation, worthless stock of the same bank.

In the case at bar there was a trial by jury. Evidence was introduced by both parties. When the evidence was all in, the defendant demurred to the evidence, and the plaintiff joined in the demurrer. The jury returned a verdict for the plaintiff for $717.66, "if the law be for the plaintiff upon the defendant's demurrer to the evidence; but if the law be for the defendant, then, we find for the defendant." The verdict was returned July 12, 1913, and the court took time to consider the judgment to be rendered thereon, and held up the case until the 14th day of April, 1915. In the meantime the two cases of Lowance v. Johnson, and Hunter v. Johnson, supra, were decided by this court. April 14, 1915, the defendant moved the court for leave to withdraw his demurrer to the evidence, which motion was refused, and judgment was entered for the plaintiff; the defendant excepted and moved the court for arrest of judgment.

The trial court did not err in refusing to allow the defendant at that time and without excuse to withdraw his demurrer to the evidence and to set aside the demurrer, nor did the court err in refusing to direct a new trial. The question upon which the entire dispute rests is whether or not the plaintiff was induced to purchase bank stock from the defendant by the misrepresentation and deceit of the defendant. The determination of this question depends almost wholly upon the credit to be given to the testimony of the witnesses, and was thus a case peculiarly for a jury. The defendant demurred to the evidence, and the circuit court decided the case guided by the law arising on demurrer to the evidence. The law in this state, since the passage of the Act of the Legislature of 1891, section 9, chapter 131 of the Code, is: "On demurrer to evidence, if it be conflicting, judgment in favor of the demurree should be given, unless the evidence plainly and decidedly preponderates in favor of the demurrant on some decisive point." Barrett v. Raleigh Coal & Coke Co., 55 W. Va. 395.

Considering the facts and circumstances proven in this case, and by drawing such reasonable inferences therefrom as a jury could have drawn, a jury would have been warranted in finding that the defendant did wilfully deceive the plaintiff as to the value of the stock and thereby induce him by fraudulent means to buy the same. This question and the other questions arising on the record were for the jury, and if the jury had found for the plaintiff, the court could not have set the verdict aside. That is the test in cases where there is a demurrer to the evidence.

The bank stock was sold to the plaintiff in part payment for the purchase of a horse. The price agreed upon by the parties for the horse was $1,000.00. The stock was taken at 50% discount. The defendent offered to prove that the value of the horse was less than $1,000.00. The court refused to allow this to be done, and the defendant claims error. The value of the horse was not in dispute. The parties agreed upon the price. There is nothing in the case to indicate any misrepresentation as to this. The only question is as to the bank stock received as part payment. The court did not err in refusing to admit testimony on this point. The defendant attempted to show private sales of the stock made about that time, but did not show the market value of the stock. It does not appear that it had any market value. It...