Plaintiff v. Riggs

• Decision Date: 31 January 1869
• Parties: Shelby P. and George Weltner v. Edward Riggs.
• Court: West Virginia Supreme Court

3 W.Va. 445

Shelby P. and George Weltner

v.Edward Riggs.

Supreme Court of Appeals of West Virginia.

January Term, 1869.

June 30, 1864,

1. The act of Congress of June 30, 1864, requiring certain instruments, documents and papers to be duly stamped with a U. S. revenue stamp, are by said act only declared to be invalid which instruments, documents and papers were made, signed, issued, accepted or paid with intent to evade the provisions of the act.

2. The act of Congress of June 30th, 1864, requiring certain instruments, documents and papers to be stamped with a U. S. revenue stamp, and declaring such instruments, documents and papers invalid because they are not so stamped, does not in terms nor by necessary import determine whether the same shall be admissible as evidence in a State court, when not so stamped.

3. W. bought of R. apple and peach trees and grape roots to be delivered at a specified place "this fall." R. delivers them at the place on the 22nd day of November, and during severe freezing weather tied in bundles and unwrapped, and without previous notice of the time of delivery to W. Held:

That R. had no right to deliver and requiro W. to receive the trees and roots at that unseasonable period, and that even if the time had been seasonable, R. should have given W. reasonable notice of the time of delivery, and more especially as the articles were perishable, and much preparation for transplanting had to be made to make them profitable to W.

4. Where there is a verdict and judgment for the whole contract price of an

article, while the action is only for not receiving it, the damage in such case, is only the difference between the value of thearticledelivered or tendered, at the place, and the contract price, and if the article then and there was worth the price stipulated, or nearly so, the plaintiff could not have sustained damage to the whole amount of the contract price; for until the article is accepted by the other party it remains the property of the vendor, and the verdict and judgment is erroneous.

In May, 1865, Edward Riggs brought an action of trespass on the case in assumpsit in the circuit court of Monongalia county, against Shelby P. and Geoi'ge Weltner. The declaration was founded upon the following contract: "September 22d, 1864. Bought' of Edward Riggs two thousand grape roots, one year old, at 16 dollars per hundred; sweet apples 100; fall apples 100; winter apples 1, 000; peach trees 2, 000. The above trees at 16 dollars per hundred with a credit of three years with use; the same to be delivered this fall at Line ford; the above sale to be conditioned upon the said Riggs loaning the undersigned 2, 000 dollars for the term of three years, with use, the same to be secured by a deed of trust on the farm of the undersigned, the interest to be paid annually.

(Signed) Shelby P. Weltner,

George Weltner."

[U. S. stamp 5 cents.] [U. S. stamp 5 cents.]

The declaration contained the usual common counts and a special count on the contract. At the August term, the office judgment and writ of inquiry were set aside, and the defendants filed a general demurrer to the declaration and to each count thereof, and pleaded the general issue with leave to file additional pleas within thirty days. The cause was continued until the February, term, 1867, when the demurrer filed by the defendants to the plaintiff's declaration was overruled, and the defendants offered to file a special plea in writing, to which the plaintiff objected because said plea was offered too late, and moved that said plea be re-jected. The court sustaiiied the objections and refused to permit the special plea to be filed, to which opinion of the court the defendants excepted.

On the trial of the cause the plaintiff offered to introduce as evidence the contract on which the suit was founded, to the introduction of which the defendants objected, on the ground that the same was not sufficiently stamped with a United States Internal Revenue stamp, as required by the act of Congress for such au instrument. But the court was of opinion that the same was properly and sufficiently stamped, and overruled said objection, and allowed the contract to be read to the jury as evidence, to which opinion of the court the defendants also excepted. The evidence in the cause showed that the plaintiff who, under.the contract, was. required to deliver the trees and grape roots in the fall of 1864, to the defendants, at Line ford, in Monongalia county, did not deliver them until the 22d day of November; that they were brought on a steamboat to New Geneva, on the Monongahela river, and thence transported by wagon to the Line ford, on Cheat river, the place of delivery, tied in bundles without being wrapped with straw or moss, and unloaded on the bank of the river, aud that the defendants had no notice of their delivery there until the day the trees were unloaded at the Line ford. That it was very cold and freezing when the trees arrived and for a day or two after, and that there was some ice formed during the time.

Before the jury left bar the defendants asked for the fol lowing instructions to be given by the court to the juiy: "The defendants, by their attorneys, ask the court to instruct the jury, that before they can find for the plaintiff in this cause, they must first find from the evidence that the said plaintiff did, in fact, deliver at the Line ford, in, this county, for the defendants, at least 2, 000 grape roots of one year's growth, 100 sweet apple, 100 fall apple, and 1, 000 winter apple trees,-and 2, 000 peach trees, as respectively specified in the contract sued on; and that said trees and grape roots were so delivered in proper care and condition, and within the proper or ordinary season for planting that fall, to wit: the fall of 1864 in this locality, or latitude." And, No. 2:

"-The defendants, by their attorneys, ask the court to instruct the jury, that before they can find a verdict for the plaintiff in this cause, they must find from the evidence that the plaintiff did, in fact, deliver at the Line ford, in this county, for the defendants, at least 2, 000 grape roots, of one year's growth, 100 sweet apple, 100 fall apple, and 1, 000 winter apple trees, and 2, 000 peach trees, as respectively specified in the contract sued on; and that said...