Patterson v. New River & Pocahontas Consolidated Coal Co.
| Decision Date | 12 October 1920 |
| Docket Number | 4115. |
| Citation | 104 S.E. 491,87 W.Va. 177 |
| Parties | PATTERSON v. NEW RIVER & POCAHONTAS CONSOLIDATED COAL CO. |
| Court | West Virginia Supreme Court |
Submitted October 5, 1920.
Syllabus by the Court.
One who enters into a contract with another for the doing of certain work cannot be held liable in an action at law by the owner thereof for the rental value of machinery used by such other in the doing of such work, even though it appears that he had knowledge that such machinery belonged to a third party who had leased it to the contractor for the doing of the particular work.
Where the owner of machinery leases it to a contractor for the purpose of being used in the execution of certain work which such contractor has undertaken to perform, he cannot hold the party for whom the work is being done liable for the use of such machinery, upon the ground that payments were made to the contractor for such work in advance of the time provided in the contract.
One who, without the consent of the owner, knowingly uses for his own benefit the property of another, will be liable in an action of assumpsit to such other for the reasonable value of the use so made of such property.
The evidence of a witness on a former trial of a civil case, who has since died, may be proved on a subsequent trial of the same case.
Error to Circuit Court, McDowell County.
Action of assumpsit by W. F. Patterson, Jr. administrator, etc., against the New River & Pocahontas Consolidated Coal Company. Verdict and judgment for plaintiff, and defendant brings error. Reversed, verdict set aside, and cause remanded for a new trial.
Anderson Strother, Hughes & Curd, of Welch, for plaintiff in error.
Sale & Tucker, of Welch, for defendant in error.
This action of assumpsit was instituted for the purpose of recovering for the use of certain machinery belonging to the plaintiff's decedent, which it is contended was used in the defendant's business by a contractor which it had employed to do certain work for it. A trial in the circuit court of McDowell county resulted in a verdict and judgment in favor of the plaintiff, to review which this writ of error is prosecuted.
It appears that on the 30th of July, 1912, the defendant entered into a contract with one W. H. Hyde by which the said Hyde agreed to sink and construct two shafts, including concrete lining, as well as certain other work in connection therewith, at Weirwood, in Fayette county, for certain prices therein named, the said Hyde to furnish all labor, material tools, and equipment for the doing of said work. The specifications, which were made a part of the contract provided that the work to be done included all concrete masonry around the top of the shafts, all excavating timbering, concrete lining, placing of guides, water rings, building stairway and such other work as may be directly or indirectly connected with the sinking of the said shafts. It is further provided that the plans and specifications are intended to co-operate and to be taken together so that any work shown on the plans and not mentioned in the specifications, or vice versa, shall be executed the same as though set forth on the plans or mentioned in the specifications; that is to say, the contractor undertook to do all of the work mentioned either in the specifications or shown on the plans, and not only such work as was shown by both. The contract provided certain prices for the work to be done, including the price of $5 per cubic yard for entry driving. This item is mentioned for the reason that it covers the character of work involved here. The contract further provided that the contractor should complete the work within six months, and the same should be paid for upon monthly estimates, 90 per cent. to be paid to the contractor as the work progressed, and 10 per cent. of such estimates to be retained until the work was completed. The contractor entered upon the work in the year 1912, and completed the same in the fall of 1914, consuming two years in the performance of the contract, instead of six months, as provided therein. No advantage, however, was taken of this by the defendant. Upon the completion of the work a final estimate was made and settlement had with the contractor. In March, 1913, while the work was in progress, the contractor wrote a letter to the defendant informing it that certain of the machinery, a list thereof being attached to the letter, which he was using in the performance of said work, belonged to plaintiff's decedent; that the contractor had the use of the same as long as he was using it in the work at Weirwood. This was the only notice the defendant ever had that plaintiff's decedent had any interest in the machinery or equipment being used by the contractor. The plaintiff contends that about this time, to wit, in March, 1913, the defendant and the said Hyde changed the arrangement under which said work was being done, and that thereafter the defendant paid the contractor Hyde the full amount of his pay rolls and other bills while doing the work, regardless of whether the estimates for any particular month amounted to as much as the contractor's expenses or not, and that because of this arrangement the contractor became simply an employé of the defendant here. Plaintiff therefore claims that for the use of the machinery after that time the defendant is liable. He further says that, if the above contention is not tenable, this machinery was used in the performance of work in addition to the work provided to be done by the contract, and that for the use of the same in doing such work for the defendant he is entitled to the reasonable value thereof. There is also a claim made for certain items of personal property which it is claimed were appropriated by the defendant. All of these were waived, however, except one item which will be hereafter mentioned. The court below found that plaintiff's first contention, to the effect that the contract had been virtually abandoned, and the contractor become simply an employé of the defendant, was not sustained by the proof, but allowed a recovery on the verdict of the jury for the use of the machinery in doing the work, which the jury found was outside of the contract, amounting to more than $7,000. This action of the court is assigned as error by the defendant, and the plaintiff assigns as cross-error the action of the court in refusing to allow him to recover on the basis of his contention first stated above. The contention of the defendant is that the contract between it and Hyde included all of the work done by Hyde, and that, whatever the law may be as to the right of the plaintiff to recover for the use of the machinery, in case it had been unauthorizedly used by Hyde, he has no basis for recovery under the showing made here. The basis for the plaintiff's claim on this account is that, in addition to doing the work referred to in the contract, Hyde excavated for the...
To continue reading
Request your trial