Mitchell v. Davis

• Court: West Virginia Supreme Court
• Writing for the Court: WILLIAMS, J.
• Citation: Mitchell v. Davis, 73 W.Va. 352, 80 S.E. 491 (W. Va. 1913)
• Decision Date: 09 December 1913
• Parties: MITCHELL ET AL. v. DAVIS ET AL.

80 S.E. 491

73 W.Va. 352

MITCHELL ET AL. v. DAVIS ET AL.

Supreme Court of Appeals of West Virginia.

December 9, 1913

Submitted December 2, 1913.

Syllabus by the Court.

In a civil action before a justice, the amount named in the summons determines jurisdiction. If plaintiff's claim exceeds $300, he may release all above that sum and sue for the remainder, but he can not divide his claim and bring separate suits.

If a contractor has been prevented by the contractee from performing his contract according to its terms, he is not liable in damages, notwithstanding a stipulation in the contract for liquidated damages for failure to perform.

Error to Circuit Court, Lincoln County.

Action by A. B. Mitchell and A. E. Adkins, partners, etc., against H. A. Davis and others. Judgment for plaintiffs and defendants bring error. Affirmed.

D. E Wilkinson, of Hamlin, and Williams, Scott & Lovett, of Huntington, for plaintiffs in error.

Leftwich Byrnside & Shaffer, of Madison, for defendants in error.

WILLIAMS J.

Plaintiffs A. B. Mitchell and A. E. Adkins, partners in a logging contract, recovered a judgment against H. A. Davis, W. H. Muth, and L. S. Davis, partners trading as the Gem Lumber Company, for the sum of $260.34, and they were awarded this writ of error. Defendants were engaged in the manufacture and sale of lumber, and had constructed a tramroad extending from their sawmill, up a stream, into some standing timber which they had purchased. They employed A. B Mitchell and Joseph McNeeley on April 21, 1910, to cut, haul, and place the timber on skids at their mill, at the price of $5 per 1,000 feet, log scale. Mitchell and McNeeley were to use the tramroad over which to haul the logs. It was also mutually agreed that, if they should fail to place on skids, at the mill, at least 8,000 feet per day, or if defendants should fail to saw that much per day, the party so failing should forfeit to the other 75 cents per 1,000 feet for the shortage, but that said forfeit was not to apply in case of any hindrance in the work beyond the control of the party. By consent of all parties, McNeeley retired from the contract about the last of November, 1910, and A. E. Adkins took his place. Payments were to be made on the 15th of the month following that in which the work was done.

This action was brought on 6th of April, 1911, to recover the price claimed for logs delivered in December, 1910, and in January and February, 1911. Plaintiffs had delivered 139,191 feet in those months. The action was brought in a justice's court, and, after judgment by the justice, appealed to the circuit court. Summons was issued for $300, and plaintiffs' account filed showed a balance due them of $318.70. It is argued that this fact shows that the amount was beyond the jurisdiction of a justice. Defendants moved to dismiss the action on this ground, and the court overruled the motion. This was not error. In civil actions, the amount demanded by the summons determines the justice's jurisdiction. Moore v. Harper, 42 W.Va. 39, 24 S.E. 633; Todd v. Gates, 20 W.Va. 464. Plaintiffs had a right to release a part of their claim, which they did, in order to bring it within the jurisdiction of a justice. Richmond v. Henderson, 48 W.Va. 389, 37 S.E. 653.

Defendants sought to recoup damages on account of plaintiffs' shortage in delivery of logs, and filed a claim of recoupment and offsets amounting to more than plaintiffs' demand, but the jury found against them. The principal assignment of error urged by their counsel, both in brief and in oral argument, is that the court erred in overruling defendants' motion to set aside the verdict and grant them a new trial, on the ground that the verdict is against the evidence.

Plaintiffs stipulated in writing what they should forfeit for failing to deliver 8,000 feet of logs per day. It is virtually admitted by plaintiffs' counsel that this was intended by the parties as liquidated damages, and was not a penalty to secure performance of the contract, in which latter case defendants' recovery would be limited to a less sum than that stipulated, provided their actual damages were less. That plaintiffs failed to deliver 8,000 feet per day is admitted. There are 77 work days in the three months covered by plaintiffs' claim, and if they had delivered an average of 8,000 feet per day for that number of days, the total amount would have been 616,000 feet; whereas they delivered only 139,190 feet, thus falling short 476,810 feet. That quantity, at 75 cents per thousand, would amount to $357.60 which is more than plaintiffs demand; and, unless plaintiffs have proven, to the satisfaction of the jury, a lawful excuse for their failure to comply with that part of their contract, the verdict should have been for defendants, and they should have been discharged. The principal question is: Does the evidence justify the jury in concluding that plaintiffs' failure was due to the acts and conduct of defendants, or their agents and employés? It is not claimed that plaintiffs were providentially hindered. But there is evidence tending to prove that a sufficient quantity of logs were cut and placed on the skids along the tramroad; that the man employed to truck them to the mill failed to deliver them; and that this trucker was employed and paid by defendants.

By the terms of the agreement, plaintiffs were to use defendants' tramroad to get the logs to the mill. Defendants also used it, at the same time, to haul their lumber from the mill to market. They trucked the lumber up the tramroad to a point where it was carried over the mountain by an hoisting engine to a railroad on another stream. There being but one line of tramroad, it was impracticable to have two men trucking over it in opposite directions at the same time. One trucker would save time and expense, as it would not be necessary for him to haul an empty truck either way. Consequently, it was mutually agreed, after the original contract was made, that one man should do all the trucking. Different men were employed at different times to do this, the last one being a man named Linkous. The jury could properly infer from the evidence that he was the servant of defendants. He was paid 60 cents per 1,000 feet for trucking logs to the mill, and a certain other price per 1,000 for trucking the lumber to the hoisting engine. With the exception of one time...