Peninsula Produce ex. v. Upshur

• Decision Date: 22 December 1927
• Citation: 149 Va. 639
• Parties: PENINSULA PRODUCE EXCHANGE, INC. v. GILES C. UPSHUR AND OTHO F. MEARS.
• Court: Virginia Supreme Court

Page 639

149 Va. 639

PENINSULA PRODUCE EXCHANGE, INC. v. GILES C. UPSHUR AND OTHO F. MEARS.

Supreme Court of Virginia, Richmond.

December 22, 1927.

1. APPEAL AND ERROR — Two Trials of the Case — Appellate Court Reviewing Record of First Trial. — Where there have been two trials of a case, the appellate court will review the record of the first trial, and if it discovers that the trial court erred in setting aside the first verdict, it will annul all subsequent proceedings, reinstate the verdict, and enter judgment thereon.

2. APPEAL AND ERROR — Weight to which Verdict of Jury is Entitled — Verdict Conclusive Unless Plainly Wrong or without Evidence to Support it — Section 6251 of the Code of 1919. — The weight to which the verdict of a jury is entitled in a case where reasonable men may fairly differ as to proper conclusions, is regulated by statute (section 6251, Code of 1919) and where the evidence shows that the case is a proper one for the submission to a jury, their verdict is conclusive unless it appears that it is plainly wrong or without evidence to support it.

3. NEW TRIALS — Conflicting Evidence — Power of Court — Case at Bar. — In the instant case there was a sharp conflict of evidence on the only issue which the jury had to decide. The two witnesses who made the contract contradicted each other flatly on the question of whether the sale was made with or without a warranty as to soundness of the subject of the sale, potatoes. There was considerable evidence on both sides, but most of it was corroborating or impeaching the two witnesses respectively, who made the contract, and therefore peculiarly for the consideration of the jury.

Held: That under these circumstances the trial court erred in setting aside the verdict of the jury.

4. NEW TRIALS — Error as to Amount of Damages — Remittitur — Setting Aside Verdict — Case at Bar. — In the instant case, an action against buyer for breach of a contract of sale of potatoes, it appeared that the jury arrived at its verdict by adding the amount claimed and the amount for which the potatoes sold and dividing it in half, but of this the plaintiff in error, the buyer, did not complain.

Held: That if the trial court thought the damages excessive or reached upon wrong principles, it could have put the defendants in error upon terms to accept what it thought the proper amount, but it had no power to annul the verdict entirely.

Error to a judgment of the Circuit Court of Northampton county in a proceeding by motion for a judgment for money. Judgment for plaintiffs. Defendant assigns error.

The opinion states the case.

J. Brooks Mapp and James M. Crockett, for the plaintiff in error.

Jno. E. Nottingham and Mears & Mears, for the defendants in error.

CHRISTIAN, J., delivered the opinion of the court.

On July 7, 1925, Giles C. Upshur and Otho F. Mears, plaintiffs, sold to T. Clay Groton, agent for the Peninsula Produce Exchange, Incorporated, defendant, three cars of round potatoes, each to contain 200 barrels, to be United States Grade No. 1, and to be delivered on July 8, 1925, f.o.b. at Kendall Grove station in Northampton county, at the price of $5.07 1/2 per barrel; and early in the morning of July 8, 1925, said plaintiffs also sold to said defendant two cars of round potatoes, each to contain 200 barrels, to be United States grade No. 1, and to be delivered f.o.b. at Kendall Grove station in said county on July 9, 1925, at the price of $5.25 per barrel. The aggregate price agreed to be paid for the five cars of potatoes was $5,145.00.

Upshur, who had superintended the digging of the potatoes and made the sale of same, proceeded on July 8, 1925, to deliver and load the same according to the contract. When Anderson, the government inspector, informed him that the potatoes would not pass inspection as United States grade No. 1, because of rot from Tuber Moth, Upshur called Groton on telephone and reported that the potatoes would not pass inspection because slightly damaged, and wanted to know if he would take them. Groton said he would have to communicate with his principal at Pocomoke City, Maryland. Upshur gave him thirty minutes within which to decide whether or not he would take the potatoes. Groton got in communication with his superior officer over the telephone, and reported the facts to him. He was instructed to accept the potatoes if they did not run over four per centum damaged ones. Potatoes had advanced on July 7th to the morning of July 8th from fifty to seventy cents per barrel.

When Groton received the above instructions he drove to Kendall Grove where he met Upshur and Anderson, the inspector. After asking Anderson how the potatoes were running and being told from the sheets, between two to four per centum, he says he then told Upshur he would take all five cars at the original price if they did not run over two to four per cent damaged potatoes. Upshur continued to deliver and load the potatoes, and Anderson to inspect the same. After the cars were shipped the inspection sheets were sent in. Instead of showing two per cent to four per cent rot, the first two cars showed five per cent and six per cent, respectively, while the other three showed fourteen per cent, twelve per cent and ten per cent. When the potatoes reached their destination, they had to be reconditioned and the defendant only received eighteen hundred and ninety-seven dollars and thirty-six cents ($1,897.36) for the five cars of potatoes.

The facts...