Parkersburg v. Smith.
| Decision Date | 18 May 1915 |
| Citation | 76 W.Va. 246 |
| Court | West Virginia Supreme Court |
| Parties | Parkersburg & Marietta Sand Company v. Smith. |
1. Assumpsit, Action of Declaration Special Count Sufficiency Against Demurrer.
A special count in a declaration in assumpsit, counting upon an original and a second or modified contract, and which after averring both contracts charges a promise on the part of the defendant to pay the amount accrued to plaintiff under the contracts pleaded, is not rendered bad on demurrer because of its omission to charge a
promise to pay '' the sum of dollars'' alleged in a
previous paragraph to be due under the first or original contract pleaded. (p. 249).
2. Same.
Nor is such count bad on demurrer for failure to aver a promise of defendant to pay respectively the two several sums demanded, one accruing to plaintiff under the contracts in writing pleaded, and the other under other contracts pleaded, but not in writing, such promises being comprehended under the general averment, of a promise to pay a sum larger than the aggregate of both items, intended and sufficient to cover both sums sued for. (p. 250).
3. Same Declaration Special Count Sufficiency Against Demurrer Interest.
Nor is such count bad on demurrer, because it avers a promise to to pay interest on the sum sued for from a date anterior to the making of the second of said contracts, interest being incident merely to the right to recover the principal sum sued for. (p. 250).
4. Contract Construction "Contract of Entirety."
A contract to drive certain piling, at a stipulated price per pile, to make certain excavation for a coffer-dam, and to afterwards remove the embankment, at a stipulated price per cubic yard, and to provide a pump of sufficient capacity and efficiency to perform the contract, at a stipulated price per day, etc, is not a contract of entirety. (p. 251).
5. Action Contracts Right of Action Evidence.
A tort may not be waived and assumpsit maintained thereon against a wrong doer, when the latter's estate has not been benefited thereby, as by the appropriation by him of plaintiff's property or the proceeds of the sale thereof, and evidence of such tort and damages to plaintiff therefrom, and not so benefiting the estate of defendant, should, in an action ex contractu against him, be rejected. (p.253).
6. Evidence Admissibility Books of Account.
Point one of the syllabus in West Virginia Architects and Builders v. Stewart. 68 W. Va. 506, re-affirmed and applied, as justifying the admissibility of plaintiff's books of account in evidence to the jury. (p. 256).
7. Same Admissibility Admission Compromis e.
Admission by one of the parties of independent facts relating to plaintiff's claim, though made during the colloquium, or during a treaty for a compromise, are admissible in evidence, such admission not amounting to a proposition of compromise. (p. 257).
8. Pleading Issues and Proof Payments Set-Off and Counterclaim.
In an action on an account, accruing to plaintiff under contracts, such as those sued on in this case, it is error to permit plaintiff, in the absence of counter off-sets filed by him, to prove that the payments specified in defendant's bill of off-sets were properly applicable to other items of plaintiff's account, not covered by its bill of particulars. Construing section 4, chapter 126, serial section 4824, Code 1913. (p. 257).
9. Trial Instructions Applicability to Case Compromise.
Where, as in this case, at least one of the items in the account sued for is covered by a contract of compromise between the parties, an instruction to the jury that such compromise is binding upon the parties thereto unless impeached for fraud, or because something has been inadvertently omitted therefrom, is properly given, (p. 258).
10. Contracts Construction Contracts Modification Award of Arbitrators.
The award of the arbitrators, Horstman and Burgess, made pending the execution of plaintiff's contracts, requiring it to remove the coffer-dam embankment to the satisfaction of the government of the United States, omitting the other words of the original contract, requiring that work to be done to the satisfaction of defendant also, and the acceptance thereof by the parties, properly construed, did not constitute a modification of that provision of the original contract. (p. 258).
11. Trtal Binding Instructions Evidence.
A binding instruction is properly rejected which excludes the theory of one of the parties, and which the evidence tends in an appreciable degree to support. (p. 261).
12. Assumpsit, Action of Declaration Quantum Meruit Count.
A quantum meruit count is now obsolete, and is no longer necessary in an action in assumpsit containing the common counts for work and labor done, etc. (p. 262).
13. Contracts Partial Performance Compensation.
Where a party to a contract fails to furnish a pumping outfit of the capacity and efficiency called for by his contract, he is not entitled to recover the full price per diem stipulated therefor in the contract, but only such sum as the same is reasonably worth to the other party to the contract. (p. 262).
Error to Circuit Court, Wood County.
Action by the Parkersburg & Marietta Sand Company against Lloyd E. Smith. Judgment for plaintiff, and defendant brings error.
Reversed, and new trial awarded.
Moss, Marshall & Forrer and H. P. Camden, for plaintiff in error.
Thomas Coleman and Reese Blizzard, for defendant in error.
On two special counts and the common counts in assumpsit, and on issues joined on the general and sundry special pleas, with special replications to some of said special pleas, plaintiff obtained the verdict and judgment for $8,280.49, complained of.
On writ of error defendant opposes to this judgment numerous assignments of error charged to have been committed on the trial below.
The first of these is that the trial court erroneously overruled his demurrer to the declaration and each count thereof. No point is made against the common counts. The first count pleads a first and a second or supplementary contract between plaintiff and defendant in haec verba, and performance thereof by plaintiff, and alleges that plaintiff was entitled to recover thereon from defendant the sum of $13,197.53. as shown by an itemized statement filed therewith, and designated "Amount due under written contracts." This count then pleads performance of certain other work, namely, the making of certain excavations, fillings, and embankments around and in a certain coffer-dam, and sinking certain piling, and raising and repairing a certain boat, in connection with the work done and performed by the plaintiff under said written contracts; and that at the special instance and request of defendant and for the consideration then and there agreed to be paid by defendant to plaintiff, plaintiff also performed certain labor for defendant and furnished certain material, including piling and equipment, amounting to $791.69, according to an itemized account thereof also filed with the declaration and designated "Account for work done not under writings."
"By reason whereof", it is alleged, defendant "became indebted and liable to the said plaintiff in the said sum of Fifteen Thousand Dollars * * * with interest from the first day of August, 1910, until paid, and being so liable, the said defendant * * * in consideration thereof, afterwards, to-wit, on the day of, 1912, undertook and promised to pay * * * plaintiff, the sum of $15,000.00, with interest as aforesaid, whenever the said defendant should be thereunto afterwards requested." And the allegation follows that not regarding his said promises and undertakings defendant, though often requested, had not as yet paid plaintiff said sum with interest as aforesaid, or any part thereof, but had wholly neglected to do so to the damage of plaintiff, $15,000.00.
The second count pleads that on the day of August, 1912, after defendant had executed and delivered the contracts in writing aforesaid, and after plaintiff had done and performed all the labor and furnished all the material mentioned and set forth in the first count, at the special instance and request of defendant, defendant accounted with plaintiff "of and concerning divers sums of money for said labor performed, and said material and equipment furnished, before that time and owing to plaintiff, and then in arrear and unpaid", and that upon such accounting "defendant * * * * was found in arrear, and indebted to * * * * plaintiff in the further sum of * * * * * $15,000.00", and that being so indebted, and in consideration thereof, defendant "undertook and then faithfully promised" to pay plaintiff the said sum of money, when he should be thereunto afterwards requested, and as represented in the account thereof filed therewith, and that being so liable defendant in consideration thereof, on the day of, 1912, undertook, etc., in the same manner as alleged in the first count.
The first point made against the first count is that it con- tains no allegation of a promise to pay "the sum of
dollars" alleged in a previous paragraph thereof to have been due and owing plaintiff under the first or original contract, We think there is no merit in this point. Immediately following this averment it is alleged that owing to disputes and controversies between the parties as to plaintiff's rights under said first contract, the second or supplementary contract pleaded was entered into, and then follows the allegation above recited in relation to the liability and promises of defendant under both contracts, and as to the amount accrued to plaintiff thereunder and the promises of defendant alleged, etc. We think these averments sufficient to satisfy ail requirements of good pleading.
The point is also made against those averments that there are no distinct allegations of a promise to pay the sum of $13,197.53, accrued under the contracts in writing, and the sum of $791.69, accrued under...
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