Penix v. Grafton.

• Decision Date: 27 April 1920
• Citation: 86 W.Va. 278
• Parties: Robert Penix v. James Grafton et al.
• Court: West Virginia Supreme Court

86 W.Va. 278

Robert Penix

v.James Grafton et al.

Supreme Court of Appeals of West Virginia.

Submitted April 15, 1920.

Decided April 27, 1920.

1. Exceptions, Bill of Purpose Bill Slated.

The purpose of a bill of exceptions is to exhibit the supposed mistakes of the trial court which do not appear upon the record, and which cannot otherwise be brought before an appellate court for review and correction if erroneous. (p. 280).

2. Appeal and Error Bill of Exceptions not Necessary to Bring up Orders and Judgments.

There is no necessity for a bill of exceptions to make part of the record the orders and judgments of the trial court, inasmuch as they are already part thereof. (p. 280).

3. Same Bill of Exceptions Signed Within Thirty Days From Judgment Held Taken Within Thirty Days from Adjourn- ment of Term,

Where the order filing a bill of exceptions shows that the same was signed less than thirty days from the date of the entry of the final judgment, it sufficiently appears that the bill of exceptions was taken within thirty days from the adjournment of the term at which the judgment was rendered, notwithstanding neither the bill of exceptions nor the order filing it expressly states this to be the fact. (p. 280).

4. Trial Instructions, Though Correct, Erroneous When not Sup-ported by Evidence.

It is error to give instructions to the jury, even though they state correct propositions of law, where there is no evidence to support some of the hypotheses which they contain, (p. 282).

5. Same Inconsistent Instructions Should not be Given.

It is error to give inconsistent instructions, inasmuch as the jury are left to determine which theory of the law, as thus presented, is correct, and renders' it impossible for the court to determine upon what legal principle the verdict is founded, (p. 283).

6. Same Binding Instructions Should not be Given Without Re-quiring Finding on Theory of Defense.

It is error to give a binding instruction in favor of the plaintiff which does not require a finding by the jury upon a theory of defense which is presented and supported by evidence, unless such instruction requires a finding by the jury which would make such theory of defense inapplicable to the case. (p. 283).

7. Same Binding Instructions Must Require Finding on Every Necessary Hypothesis.

A binding instruction must require a finding by the jury upon every hypothesis which is necessary to justify a recovery. (p. 283).

Error to Circuit Court, Fayette County.

Action by Robert Penix against James Grafton and others. Judgment for plaintiff, and defendants bring error.

Reversed, verdict set aside and remanded.

Dillon & Nuckolls, for plaintiffs in error.

J. L, Ryan, McClung & Myles and Thos. P. Ryan for defendant in error.

Ritz, Judge;

This writ of error brings up for review a judgment of the circuit court of Fayette county in favor of the plaintiff, rendered upon the verdict of a jury in an action of assumpsit.

At the threshold we are met with a motion to dismiss the writ of error as improvidently awarded, several grounds being assgined therefor, some of which have, however, been cured by the return to a writ of certiorari awarded herein. Two of the grounds insisted upon are: first, that the judgment of the circuit court cannot be considered because it is not made part of the record by any bill of exceptions, and only appears in the final order of the court; and, second, that the record does not show that the bill of exceptions was signed within thirty days from the adjournment of the term at which the judgment Avas rendered. So far as the first ground is concerned it is without merit. The function and purpose of a bill of exceptions is to disclose the supposed errors which Avere committed by the court during the trial of the case which do not appear in the record already made. H in ton Milling Co. v. New 'River Milling Co., 78 W. Va. 3, 14. It would be entirely supererogatory to bring into the record as part thereof by bill of exceptions those things which are already part thereof, such as orders or judgments of the court, or the pleadings which have been filed in the case.. The second ground for dismissing the writ is likeAvise without merit. The record shows that the final judgment was entered on the 27th of March, 1919, at a regular term of the circuit court in session on that day, and Avhile the order recites that the questions arising on the motion Avere submitted on the 22nd of March, and the bill of exceptions not taken till the 24th of April, still this judgment order clearly shows that it was entered on the 27th of March, or less than thirty days before the bill of exceptions Avas taken and filed. But even if it could be considered that the judgment was entered as of the 22nd of March, still the order clearly shows that the court was still in session on the 27th, which was less than thirty days from the date upon which the bill of exceptions Avas filed, as shown by the order filing the same.

The controversy out of which this suit grows is over the value of services claimed to have been rendered by the plaintiff for the defendants. On the 19th of April, 1917, the plaintiff and one P. H. Brazie entered into a contract with the defendant James Grafton by which they undertook and agreed to furnish all of the walnut logs that could be acquired by them to the said Grafton, at prices therein mentioned, the quantity furnished not to be less than three carloads. The plaintiff claims that after this contract was entered into Grafton'came to Fayetteville and requested the plaintiff to secure the interest of Brazie in the contract, and upon his replying that he did not, have the money to buy Brazie out Grafton told him that he would furnish the money if he Penix, would acquire Brazie's interest. Acting upon this he bought Brazie's interest in the contract, and Grafton paid the money, and by writing endorsed on the contract Brazie was released from its performance, and Penix substituted in lieu of himself and Brazie. Plaintiff says that the defendant Grafton then told him to disregard the contract and consider it at an end; that he wanted the logs gotten out quickly; that he was under a heavy bond to the British government to furnish the lumber at once; and told him if he would go to work for him, regardless of the...