Pancake v. Hite

• Decision Date: 20 March 1928
• Docket Number: 6061.
• Citation: 142 S.E. 518,105 W.Va. 366
• Parties: PANCAKE et al. v. HITE et al.
• Court: West Virginia Supreme Court

142 S.E. 518

105 W.Va. 366

PANCAKE et al. v. HITE et al.

No. 6061.

Supreme Court of Appeals of West Virginia.

March 20, 1928

Rehearing Denied April 9, 1928.

Syllabus by the Court.

A declaration may be amended at the trial of the action to make the allegation correspond to the proof offered, if substantial justice will be thereby promoted and such amendment does not entitle the defendant to a continuance, unless he shows to the satisfaction of the court that a continuance is necessary to enable him to make his defense. Adams v. Adams, 79 W.Va. 546, 92 S.E. 463.

Error to Circuit Court, Hampshire County.

Assumpsit by James I. Pancake and others against John Y. Hite and others, partners, as the Hite Lumber Company. Judgment for plaintiffs, and defendants bring error. Affirmed.

Robert White, of Romney, and W. H. Conaway, of Fairmont, for plaintiffs in error.

McCauley Zimmerman & McCauley, of Romney, for defendants in error.

LIVELY J.

This is an action of assumpsit by James I. Pancake et al. against John Y. Hite and E. B. Gribble, partners trading as the John Y. Hite Lumber Company, to recover the sale price of certain chestnut timber that would make telephone and telegraph poles on the plaintiff's land in Hardy county, W.Va. This writ was awarded to a judgment entered on a $2,400 verdict in plaintiffs' favor.

The plaintiffs in error have filed no brief, and have made no appearance in this court. In taking up the assignments of error in the petition for this writ, we cannot pass upon those assignments depending upon the evidence and the instructions based thereon, because there was no bill of exceptions making the evidence a part of the record. McKenzie v. Mackall, 85 W.Va. 391, 102 S.E. 118; Coal Run Co. v. Cecil, 94 W.Va. 121, 117 S.E. 697; Guyandotte Coal Co. v. Electric & Machine Works, 94 W.Va. 300, 118 S.E. 512; Moorefield v. Lewis, 96 W.Va. 112, 123 S.E. 564. The assignments of error which we can consider are those relating to the pleadings and to the motion for a continuance made upon the allowance of an amendment to the plaintiff's declaration during the course of the trial.

The first ground of alleged error is the court's refusal to sustain the motion to quash the summons and return. This motion was general in its nature; no specific reasons being assigned therein. Moreover, it is well settled by our decisions that, in actions at law, except in judgments by default, the writ is not a part of the record. Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 26 S.E 431; Netter-Oppenheimer & Co. v. Elfant, 63 W.Va. 99, 59 S.E. 892; State v. Jarrell, 76 W.Va. 263, 85 S.E. 525. It would have been proper to have craved oyer of the writ, and thus made it a part of the record. Netter-Oppenheimer & Co. v. Elfant, supra. This the defendants failed to do. The writ not being a part of the record, this assignment fails.

It is further contended that the court erred in overruling the demurrer to the plaintiffs' declaration and to each count thereof. No specific grounds of demurrer were pointed out. We are not disposed to dwell at length upon this assignment. The first count in the declaration based a recovery upon the common counts; the second was a special count in assumpsit. The latter sufficiently averred the defendants' promise and a legal consideration therefor, the readiness of the plaintiffs to perform their part of the contract, the demand upon defendants, and the breach of their obligation, with resultant damages. Union Stopper Co. v. McGara, 66 W.Va. 403, 66 S.E. 698; Burks on Pleadings and Practice, § 88. The defendants were fully informed of the case they were called upon to meet, and their demurrer to the declaration and each count thereof was properly overruled.

The third and most important question presented upon this writ is that raised by the defendants' third and fourth assignments of error; namely, that the court erred in permitting the plaintiffs to amend their declaration during the trial of the case and in refusing to grant the defendants a continuance upon the allowance of the amendment. The contract offered in evidence upon the trial was as follows:

"Romney, West Virginia, October 7, 1922.

We, the John Y. Hite Lumber Company, this day bought of Joe S. and James I. Pancake all the chestnut that will make telephone and telegraph poles that are on the tract of land owned by the said Pancakes on Saw Mill Mountain, Hardy county, West Virginia, for the sum of twenty four hundred ($2400.00) dollars, to be paid in three or four days from the...