Mills v. Miller, 10291

• Decision Date: 13 March 1951
• Docket Number: No. 10291,10291
• Citation: 64 S.E.2d 111,135 W.Va. 627
• Court: West Virginia Supreme Court
• Parties: MILLS, v. MILLER.

Page 111

64 S.E.2d 111

135 W.Va. 627

MILLS, v. MILLER.

No. 10291.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 23, 1951.

Decided March 13, 1951.

Syllabus by the Court.

1. The verdict of a jury, based on conflicting evidence, will not be disturbed by this Court, unless plainly wrong, or without any evidence to support it.

2. When improper or incompetent evidence for the plaintiff is erroneously permitted to go to a jury, but it affirmatively appears, from the competent evidence in the case that the verdict of the jury in favor of the plaintiff was fully warranted the error aforesaid will be treated as harmless and nonprejudicial, and the verdict so returned, and the judgment based thereon, will not disturbed by this Court. The same principle applies to a case where improper testimony favors a defendant, and the verdict is in his favor.

Okey P. Keadle, Huntington, for plaintiff in error.

Duncan W. Daugherty, Duncan W. Daugherty, Jr., Huntington, for defendant in error.

FOX, President.

This is an action of assumpsit, instituted in the Circuit Court of Cabell County, in which Paul W. Mills, plaintiff, seeks to recover from Mrs. C. A. (Shand) Miller, formerly Shand, the sum of $2,000.00 upon plaintiff's claim of compensation for the sale of a drug store known as Shand's Cut Rate Drug Store, Inc., located in the City of Huntington.

The declaration was filed at August Rules, 1946. It contains the common counts, and a second count in which it is alleged that in November, 1945, the defendant agreed that if he, the plaintiff, would furnish a purchaser for the Shand's Cut Rate Drug Store, she, the defendant, would pay to the plaintiff the sum of $2,000.00, for his services; that he had furnished such a purchaser; and that the defendant thereafter sold said drug store to him, and, therefore, became indebted to the plaintiff in the sum of $2,000.00, which she promised to pay, and which she had not paid. At the January term, 1947, the defendant appeared and filed her general issue plea, and special pleas Nos. 1 and 2. The plea of non assumpsit merely denied the allegations of the declaration. Special plea No. 1 alleged that the plaintiff had not qualified as a real estate broker in the State; and special plea No. 2 alleged that the Shand's Cut Rate Drugs was owned by Shand's Cut Rate Drug Store, Inc., a corporation, under the laws of the State of West Virginia, and that any agreement in connection with the sale of said store, made by the defendant with the plaintiff was made by her as agent and officer of said corporation, and was not made on the responsibility of the defendant in her individual capacity. On these issues, the parties went to trial before a jury on September 28, 1949, the result of which was a verdict in favor of the plaintiff for the sum of $2,000.00. A motion to set aside said verdict was overruled, and judgment entered, on January 7, 1950, in favor of the plaintiff, to which, on motion of the defendant, we granted this writ of error on May 29, 1950.

In the trial of the case, the following facts were developed by the evidence: In October, 1945, the plaintiff, a drug salesman, called upon the defendant in her store in Huntington. He asked defendant whether the drug store was for sale, to which she replied in the negative, but a little later she told the plaintiff that she did want to sell. According to his testimony he then told her that he generally got five per cent commission for selling stores. He then asked her: 'Who will I collect my commission from?' She replied: 'You will have to collect from the buyer.' He then told her: 'I will see what I can do.' A short time later while he was calling on Lou R. Hager, owner of a drug store in Welch, West Virginia, and who was then trying to sell the same, he told Hager that he had Shand's Cut Rate Drug Store for sale. Later, in November, 1945, Hager, with one of his assistants, came to Huntington and discussed with the plaintiff several matters in connection with Shand's Cut Rate Drug Store. This meeting was held in the Governor Cabell Hotel in Huntington, and Hager was introduced by the plaintiff to the defendant at that time. The next day Hager, the defendant and the plaintiff spent considerable time looking over the drug store. The evidence is that at that time an agreement was made that Hager would be given an option to purchase this drug store. The date of such option is December 4, 1945, and, under its terms, would expire forty-nine days thereafter. Under this option the price to be paid for the store was the actual cost of all merchandise plus $5,100.00 for all fixtures and equipment. About the time this option expired, Hager came to Huntington and made an effort to obtain a different contract than that contained in the option. He was unsuccessful in this attempt, and there was some question as to whether the option remained in force. Some dispute arose between Hager and the defendant, but this seems to have been later settled, and a few days later, about January 26, 1946, the sale of the drug store was consummated on a slightly different basis than that provided for in the option. In particular, it appears that under the option the furniture and fixtures in the store were to be sold at $5,100.00, and the stock of merchandise on a cost inventory basis. The agreement finally made, when the sale was consummated, was $50,000.00 as a lump sum for the merchandise, fixtures and equipment. The sale was consummated by Shand's Cut Rate Drug Store, Inc. as a corporation, and not the defendant.

The plaintiff did not appear to have much, if anything, to do with the negotiations, after introducing the parties in November, 1945, although it was quite apparent that he had not abandoned interest and knew when the transaction of sale was finally completed. Clearly, before the sale was consummated, he had hearned that the purchaser would not pay a commission to him, and it appears that he must have learned this fact before Hager, the prospective purchaser, first came to Huntington, because the plaintiff testified: 'That same Saturday I was up to see her to make arrangements for her to meet Mr. Hager, we were talking in her stock room. At That time I said to Mrs. Miller, 'Mrs. Miller, I have no way of collecting my commission from the buyer. What will it be worth to you for me to sell this store for you?' She said--Well, she got a pencil and figured--I don't know whether she had a pencil--'Fifty thousand dollars, five thousand, twenty-seven hundred and fifty dollars.' She said 'Paul, I don't feel I want to pay that much.' I said 'What is it worth to you.' She said 'It is worth two thousand dollars.' And that is the figure we agreed on.' Then after the sale to Hager was finally completed, and he was advised of that fact by Hager, he said to him: 'Well, I said 'I have some unfinished business with Mrs. Miller.' And I used his phone in his store and called her up. Well, she kept talking and talking and talking, and I said 'Mrs. Miller, what are you trying to tell me?' She said 'Paul, I feel like I don't owe you anything.' I said 'Why?' 'Because Mr. Hager took so long in buying the store.' I said 'That being the case I will have to bring suit, as he threatened to do.' She said 'Before you do that you go see Mr. Keadle.'' Mrs. Miller does not deny that there was a conversation on the subject of commission, and she does not seriously disagree as to the time and place. Her statement is as follows: 'After he told me that Mr. Hager wanted to have an appointment with me, he said 'Mrs. Shand, if Mr. Hager buys your store, what will be my commission?' And I said 'Commission? Why, what do you want, Paul?' And he said 'Five per cent.' So I roughly estimated what it would be. I said 'Why, Paul, that would be around two thousand dollars. That is an awful lot of money.'' She denies that she agreed to pay that sum or any other sum as commission. She also admits to the following conversation after the sale between her and the plaintiff: 'He called me up on the phone and I was at my residence, and he said 'Mrs. Shand, don't we have some unfinished business?' And I said 'No, Paul, we do not.' And he said 'Why, you sold the store to Mr. Hager.' And I said 'Paul,' I said, 'That deal--the original deal with Mr. Hager entirely fell through.' And then he said 'You sold it to him.' Very excitedly saying that. And I said 'Paul, you see my attorney about this.''

The testimony of Hager, the purchaser of the drug store, throws little light upon the matter at issue, but corroborates the testimony of the plaintiff, especially to the extent of showing that the plaintiff brought together the two parties to the sale, and that all parties to the transaction knew that the plaintiff expected a commission on completion of the sale. The fact that the sale was completed on a different basis than was first agreed upon by the parties is unimportant. If the oplaintiff is entitled to recover in this case, it is entirely on the factual basis that he brought the parties together, and that on terms satisfactory to the owner and purchaser, the sale was made, and, as plaintiff contends, defendant specifically promised to pay him the sum of $2,000.00.

It is an admitted fact in the case that the drug store was owned by Shand's Cut Rate Drug Store, Inc., and the sale was consummated by and in the name of that corporation. One of the questions arising in this case was the question of whether compensation to the plaintiff for making the sale possible, if any was due, would be the obligation of the corporation rather than the defendant as an individual. The testimony does not indicate that the question of the store being owned by a corporation was referred to at any stage of the negotiation. The testimony of the plaintiff is, and is not denied by the defendant, that the fact of the existence of the corporation was not considered. Plaintiff's testimony is that when he discussed with the...