Philip Carey Mfg. Co. v. Watson.
| Decision Date | 31 October 1905 |
| Citation | 58 W.Va. 189 |
| Parties | Philip Carey Manufacturing Co. v. Watson. |
| Court | West Virginia Supreme Court |
1. Assumpsit Office Judgment Order of Inquiry Plea.
In an action of assumpsit, where an order for inquiry of damages is required, the office judgment entered at rules does not become final on the last day of the next succeeding term of court, not having been previously set aside, so as to bar a defense thereafter; but the defendant may plead to issue at any time before the order for inquiry of damages is executed, (p. 189.)
2. Written Agreement, Alteration Of.
If a written agreement not under seal, be altered by the party claiming under it in a material part: Held, he can never recover upon the agreement so altered, nor can he avail himself of the contract in its original and true form. Newell v. Mayberry, 3 Leigh 250. (p. 195.)
3. Written Agreement, Alteration Of.
The materiality of the alteration is a question of law for the court upon the admissibility of the altered agreement in evidence, (p. 195.)
4. Written Agreement, Alteration Of Burden of Proof.
Where a material alteration is shown to have been made after the execution of the agreement, the burden is on the party producing and relying upon the agreement to explain the alteration by showing that it was made under circumstances rendering it lawful, (p. 195.)
5. Wrtiten Agreement, Alteration Op Fraud.
In the absence of such explanation the alteration will be presumed to have been made by the party producing the agreement, or with his privity and fraudulently so far as legal fraud attaches to a wilful change of an agreement by a party thereto, (p. 195.)
6. Written Agreement, Alteration Of.
If such material alteration appears to have been made fraudulently by the party producing and relying on the agreement, or with his privity, such party can not recover on the original consideration or demand, (p. 19(5.)
Error to Circuit Court, Harrison County.
Action of assumpsit by Philip Carey Manufacturing; Company against Andrew J. Watson, Verdict for defendant and plaintiff brings error.
Affirmed,
E. G. Smith, for plaintiff in error.
Davis & Davis, and E. Bryan Templeton, for defendant in error.
In an action of assumpsit by the Philip Carey Manufacturing Company against Andrew J. Watson, in the circuit court of Harrison county, there was a trial by jury and motion by defendant to exclude plaintiff's evidence and to direct a verdict for defendant, which was sustained and a verdict accordingly and judgment of dismissal thereon; and plaintiff brings error.
The first question raised is: Did the office judgment in this action become final on the last clay of the next term of court after it was entered at rules, it not being previously set aside and there being no plea to issue at that term? This question involves the consideration of parts of sections 44, 45, 46 and 47 of chapter 125, Code of 1899. The declaration is in the usual form and contains only the common counts. The plaintiff's bill of particulars, accompanied by affidavit, charging the defendant with a balance of $640.75 on an open account, after allowing certain credits, was filed in court at the next term after office judgment. The action was brought on the 26th day of July to August rules following. At August rules the clerk made an entry of summons executed, declaration filed and conditional judgment. At September rules, the clerk made an entry of conditional judgment confirmed and order for inquiry of damages. The September term, of court, 1902, followed. The action was twice continued by consent of both parties, once at that term and once at the January term following. On February 5, 1903, in term, the defendant tendered his plea of the general issue, accompanied by affidavit, to which plea plaintiff objected as coming too late, but the objection was overruled and the plea filed. In this action the order for inquiry of damages was proper under sections 44 and 45. This was not an action for debt on bond or other writing for the payment of money, or against the drawer or endorser of a bill of exchange or negotiable note. Nor was it an action of debt or scire facias upon judgment or recognizance, but an action on an open account, and was not exempted, by the provisions of section 45, from the necessity of an order for inquiry of damages. As to the finality of office judgment at the next term, this action does not fall under the provisions of section 46, because its provisions apply to cases wherein there is no order for inquiry of damages. We are, then, left to the provisions of section 47 to give finality to this office judgment on the last day of the next term of court, if it is to have such finality. We confess that the language of section 47 appears to be somewhat doubtful, but in construing it wre must consider all the provisions of the statute relating to the same subject matter in order that we may determine the scope and intent of this section. Does this section, standing alone, provide for the finality of office judgment in any case on the last day of the next term of court? It does not seem to do so. We read it in vain for any positive declaration that an office judgment shall become final in any action, at any term of court. The general object of this section seems to be to provide a way of setting aside an office judgment which otherwise would become final under some other provision of law. If this be true, we look for that other provision and find it in section 46, which provides for finality in a case where there is no order for an inquiry of damages. The element of doubt as to this construction is the clause therein, "whether an order for an inquiry of damages has been made therein or not;" but this clause does not purport to make finality. It is found in the provision made to enable the defendant to prevent finality. We think it an unwarranted inference to say that this clause, or any language in section 47, gives finality to an office judgment, if not previously set aside, on the last day of the next term in any action where an order of inquiry of damages is required. The common law right to plead should not be taken away by such an inference, nor by mere construction. The construction we now give section 47 is the same given to it by this Court in the case of Marstiller v. Ward, 52 W. Va. 74, in which Judge Brannon, delivering the opinion of the Court, said: Under this construction the admission of defendant's plea was not error.
The next question raised by the record is: Did the circuit court err in sustaining the defendant's motion to exclude plaintiff's evidence and direct a verdict for defendant? The consideration of this question makes necessary a further statement of the facts appearing in the record. The balance claimed by plaintiff in its bill of particulars was for a car load of cement roofing, which it claimed to have sold and delivered to defendant. To sustain its case, it offered only one witness, its agent who made the contract with defendant upon which it relies. During the direct examination of this witness a paper, purporting to be the written order or contract between the parties for the sale and delivery of the car load of roofing, was produced and the witness testified to the genuineness of the signatures of the parties thereto, and the paper was admitted in evidence. The essential part of this paper is as follows:
Near the right hand margin of" this paper there appeared in writing the following: "I agree to help sell this car load", and signed (the initials of name of plaintiff's agent). The witness further testified to the shipment and delivery of the car load of roofing to defendant, accompanied by a bill of sale therefor, and that on December 2, 1901, plaintiff received a payment of $140.75 from defendant, and on the same date gave a credit for freight of of $43.50, leaving a balance due plaintiff of $640.75. Witness also produced a letter from defendant, bearing date December 17, 1901, which was read to the jury, the contents of which is as follows:
On cross-examination of this witness it appeared that the original contract or order for the car load of roofing was executed in duplicate; that the duplicates were prepared by the witness, plaintiff's agent, by placing a carbon paper between a white and a yellow sheet of paper, so that when the contract or order...
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