Patton v. Elk River Navigation Co.

• Decision Date: 04 May 1878
• Citation: 13 W.Va. 259
• Court: West Virginia Supreme Court
• Parties: Patton & Shaver v. Elk River Navigation Co.

13 W.Va. 259

Patton & Shaver

v.Elk River Navigation Co.

Supreme Court of Appeals of West Virginia.

Decided May 4, 1878.

It is a general rule in pleading, that whatever circumstances or facts are necessary to constitute the cause of action or complaint, or the ground of defense, must be directly and distinctly stated in the declaration, or plea, as the case may be; and all beyond is surplusage.

Where the count shows the cause of action to be the breach of the contract on the part of the defendant, merely in refusing to pay the plaintiffs for the logs, actually delivered to it by the plaintiffs, per contract, it is not a circumstance necessary to constitute the cause of complaint, whether the defendant had, or had not, title to the land from which the logs were cut, although the contract stated the title was in defendant; and an Averment in said count, that defendant had not title, is surplusage; and no proof of title is required.

Where the real cause of complaint in a count is a claim for damages, which plain tiffs make for three hundred thousand feet of logs, which the plaintiffs cut for defendant, per contract, on lands, to which defendant claimed the title, but were prevented from delivering in the boom by no act or default of theirs, but by reason of a certain order of injunction, awarded by the circuit court, granted solely on account of the acts and default of the defendant and of the persons owning the stock of defendant, it is not necessary to allege in the count, that the defendant had no title to the lands; nor is it necessary to allege, that ''the plaintiffs had purchased a large number of horses, mules and wagons, and employed a large number of laborers, to be used in the delivering oi the logs aforesaid;" hut such allegations do not vitiate the count, and may be rejected as surplusage.

If it be true, that plaintiffs did cut the three hundred thousand feet of logs under their contract, as alleged, and were prevented from delivering the same, by reason of no fault or act of their own, but by reason of the injunction being awarded on account of the acts and default of the defendant, then the plaintiffs are entitled to recover, as damages, the contract price of the logs, so cut and not delivered, less the expense or cost necessary to make the delivery.

5. Upon the trial of the case, the plaintiffs introduced in evidence the resolution, passed by the board of directors of defendant, as evidence of the modified contract, relied on by them to sustain their action; the "defendant objected to said resolution being given in evidence to the jury, upon the ground that it contained only part of the contract between the parties, as it offered to show by its original books, produced in court, and which it offered to prove, which defendant claimed contained the full contract between the parties, and asked the court to require the plaintiffs to give to the jury as part of their evidence, in connection with their resolution," certain other matters from the books of defendant." But the court being of opinion, that the evidence offered by the plaintiffs, was at this stage of the cause competent to go to the jury by itself, and that the defendant could prove its revision of the contract, when it came to give its evidence to the jury," permitted the plaintiffs to give the resolution in evidence in connection with the proof, that had preceded. Held:

I. There is no rule of practice, under which the court has

power to compel the plaintiffs to introduce any evidence to prove the contract.

II. If the plaintiffs introduce evidence, not admissible by itself, and fail to follow it with other evidence, to make it admissible, it is to their own folly and loss, and not to the injury of defendant; and the court should direct the jury to disregard it.

III. In this case, had the resolution been inadmissible by itself, the defendant could have asked the court to direct the jury to disregard it; but the defendant had no right to ask the court, to compel the plaintiffs, to introduce parts of its entries in its own records, if the plaintiffs did not consider it proper to do so of their own accord.

IV. The defendant's objection is not to the admissibility of the resolution, but to the ruling of the court, in refusing to compel the plaintiffs to introduce other matters in evidence. The court did not err in refusing to give the instructions.

6. WherJa bill of exceptions does not set out sufficient facts to show

the pertinency of the instruction, the Appellate Court will not undertake to decide, whether the court did right, or wrong, in refusing to give the instruction.

7. When an instruction, asked for, is so imperfectly expressed,

that its true import is not readily discernible, and would tend to mislead the jury, it should be refused.

8. When in the statement of an instruction asked for, there is

such a mixture of facts with the law, which necessarily would demand the opinion of the court on both, so as to necessitate the court, to either refuse the instruction, or discriminate between the facts and law, which it is not bound to do, it is not error to refuse the instruction.

A supersedeas to a judgment of the circuit court of Kanawha county, rendered on the 17th day of June, 1875, in an action in assumpsit, before said court then pending, in which Patton & Shaver were plaintiffs, and the Elk River Navigation Co. was defendant, granted on the petition of said defendant.

Edward B. Knight, Esq., as special judge, presided at the trial of this case in the court below and rendered the judgment complained of.

The facts of the case sufficiently appear in the opinion of the Court.

T. B. Swann, counsel for the plaintiff in error, relied on the following authorities:

1 Chit. PI. 337; Id. 395; 1 Sm. Lead. Ca. 266; Chit, on Cont. pp. 557, 730, 732 and notes, 739, 735, 737-8, 741; 5 Pick. 425; 9 Pick. 16; 7 Mass. 325; 13 Mass 94; 18 Gratt. 323; 17 Gratt. 427; 3 Rand. 69; 4 Rand. 352; Abb. U. S. Dig. 494 §§1814, 1817, 18*23; Id. 502 §§1987-8.

William A. Quarrier, counsel for defendant in error, cited the following authorities:

Sedgw. on Dam. (6th ed.) pp. 75, 78 and notes; Code of W. Va. ch. 131, §13; 11 Gratt. 398; 6 Craneh 226; 1 Wall. 645; 2 Wall. 328; 2 Sm. Lead. Ca. 40.

Moore, JuDge, delivered the opinion of the Court:

This was an action of assumpsit, The declaration contained the common counts in the usual form, with specifications filed, and two special counts. The defendants demurred to the declaration, and to each count thereof. It is argued, that the court erred in overruling the demurrer as to the special counts. No error is assigned as to the common counts. The first special count is objected to on the ground, "that the jury was called to pass upon the title to the lands, and also to pass upon the acts of of the stockholders.

The first special count alleges substantially, that on the day of, 1871, the plaintiffs made and entered into a contract with the defendant, by which plaintiffs promised and agreed to cut and saw for, and deliver to defendant, a large quantity of lumber; the timber for said lumber, by the terms of said contract, was to be cut from a large tract of land, then and there claimed and represented by the defendant to the plaintiffs to be property of the defendant;" and that in consideration of the said promises and undertakings of the plaintiffs, the defendant, by the terms of said contract, then and there promised and agreed to pay to the plaintiffs for their services in cutting, sawing and delivering said lumber, the sum of $9.00 per thousand feet, mill count, for all lumber so cut, sawed and delivered," &c that the plaintiffs, under and by virtue of the contract, entered upon the said land and cut therefrom and delivered to the said defendant, a large quantity of logs, and so continued to do up to and until the 23d day of July, 1872; and that upon the said 23d day of July, 1872, the contract aforesaid was, by mutual consent of the plaintiffs and the defendant, rescinded; and that thereupon, to-wit, on the 23d day of July, 1872, the plaintiffs and defendant made and entered into a certain other contract, by which the defendant then and there "agreed and promised, to pay to the plaintiffs for all logs then cut, but not delivered, by the plaintiffs under the first mentioned contract, at the rate of $5.00 per thousand feet, bank scale; the said logs to be delivered by the plaintiffs in the boom, meaning and intending thereby, the boom situated in Elk river about three miles above its mouth; and that the said defendant, by the said last mentioned contract, further promised and agreed to advance to the plaintiffs, on said last mentioned contract, the sum of $3,000.00, of which $1,000.00 was to be paid in one month; $1,000.00 was to be paid in two months? and $1,000.00, was to be paid in three months from the date of said contract; and further to pay to the said plaintiffs the balance, that might be due upon said contract, list mentioned, at one, two, and three months after the last of the said logs, so cut, should be delivered in the boom aforesaid." "And the plaintiffs further say, that the said defendant, by the said last mentioned contract, further agreed and promised the plaintiffs, that they, the plaintiffs, should have the privilege at their, the plaintiffs', option, to cut other logs upon the said lands during the time, that they, the plaintiffs, should be occupied in and about the driving and delivering, as aforesaid, of the said logs, then already cut, as aforesaid, and that it, the defendant, would take and receive from the plaintiffs all logs, so cut, as last aforesaid, and pay the plaintiffs therefor at the same rate, and in like manner, as for the logs then already cut, as aforesaid.

"And the plaintiffs aver, that at the time of the making of the said last mentioned contract, to-wit, on the said 23d day of July, 1872, they, the said plaintiffs, then had cutjand upon the said land a large quantity of logs,...