Preston County Coke Co. v. Preston County Light & Power Co.

Citation119 S.E.2d 420,146 W.Va. 231
Decision Date13 September 1960
Docket NumberNo. 12007,12007
CourtWest Virginia Supreme Court
PartiesPRESTON COUNTY COKE COMPANY, v. PRESTON COUNTY LIGHT AND POWER COMPANY.

Syllabus by the Court

1. The provisions of Section 8, Article 2, Chapter 55, Code, 1931, expressly require a signed writing to constitute a new promise or an acknowledgment from which such promise may be implied and that such promise or acknowledgment be incorporated in a writing signed by the promisor or his agent; and to remove an account from the operation of the five year statute of limitations created and imposed by Section 6, Article, Chapter 55, Code, 1931, there must be an express promise to pay or, if there be a mere acknowledgment, it must be unqualified, without condition, importing liability and willingness to pay without reference to a future settlement, and it must be determinate and unequivocal so as to be tantamount to an express promise to pay.

2. A promise sufficient to toll the statute of limitations should be made directly to the creditor or some person acting for him, and declarations or admissions to strangers are not sufficient for that purpose.

3. A party who relies upon a new promise to remove the bar of the statute of limitations has the burden of proving such promise.

4. 'A stated account, not signed by the party, will not operate as an acknowledgment, to take a demand out of the statute of limitations.' Point 4, syllabus, Stiles v. Laurel Fork Oil and Coal Company, 47 W.Va. 838 .

5. A verdict of a jury which is without sufficient evidence to support it, or is plainly against the decided weight and preponderance of conflicting evidence, will on proper motion be set aside by the court.

6. When the evidence, though conflicting as a whole, embraces uncontradicted facts and circumstances which cause the case to turn in favor of one of the parties so that a verdict adverse to such party can not stand, the court should direct a verdict in his favor.

7. The burden rests upon the defendant, under its plea of the statute of limitations, to establish by a preponderance of the evidence that the claim of the plaintiff is barred by the statute.

8. When a debtor in making payments on an account does not direct their application, or there is no agreement between the parties as to how they shall be applied, the creditor may apply such payments in such manner as he may determine.

9. The burden rests upon the debtor to prove that it directed the creditor to apply the payments to particular invoices or portions of an account between them and that the direction to do so was made known to the creditor.

10. The admission of incompetent evidence is presumed to be prejudicial and is cause for reversal unless it appears that the verdict of the jury could not have been influenced by it.

11. A valid release of an obligation must be based upon a consideration deemed valuable in law.

12. An instruction which does not correctly state the law is erroneous.

13. It is reversible error to give an instruction which tends to mislead and confuse the jury.

14. An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by the giving of such instruction.

Steptoe & Johnson, James M. Guiher, Clarksburg, Charles V. Wehner, Kingwood, for plaintiff in error.

Charles H. Brown, Kingwood, Russell L. Furbee, Fairmont, Daniel Gersen, New York City, for defendant in error.

HAYMOND, President.

This is an action of assumpsit instituted in the Circuit Court of Preston County April 22, 1958. The plaintiff, Preston County Coke Company, a corporation, herein designated as the coke company, seeks to recover from the defendant, Preston County Light and Power Company, a corporation, herein designated as the power company, the sum of $272,571.12, representing a balance of an open account between the parties which began about the year 1923 and continued until the institution of this action. This balance the plaintiff alleges the defendant owes and has refused to pay.

To the declaration, which contains three counts and with which the plaintiff filed two itemized statements of account, the defendant filed its statement of particulars of defense, its plea of nonassumpsit, its plea of the five year statute of limitations and its plea of payment; and to the plea of the statute of limitations the plaintiff filed its special replication in which it alleged that within that period the defendant in writing had acknowledged, and by a new promise had agreed to pay, its debt of $272,571.12. The defendant also asserted a claim of set-off consisting of three items aggregating approximately $26,000.00 against the plaintiff.

Upon the trial of the case the jury returned a verdict in favor of the plaintiff for $1304.43. On February 17, 1959, the circuit court overruled the motion of the plaintiff to set aside the verdict and grant it a new trial and rendered judgment in favor of the plaintiff for the amount of the verdict with interest and costs. By the same order the circuit court confirmed the finding of the jury in favor of the plaintiff upon the claim of set-off asserted by the defendant. To the final judgment this Court granted this writ of error upon the application of the plaintiff in which the plaintiff contends that it is entitled to a verdict for $272,571.12 instead of a verdict for $1304.43. The claim of the defendant of a set-off against the plaintiff is not involved in this writ of error.

The plaintiff was incorporated in 1907 and since shortly after its inception it has owned and operated a plant for the manufacture and sale of electricity and, until recently, coal and coke producing facilities in Preston County.

The defendant was incorporated in November 1923 and it acquired the ownership of an electric distribution system in Preston County by which it sells and distributes to the public generally electricity which it has, since its inception, purchased from the plaintiff.

The account here in suit which has been active and continuous during a period of approximately thirty five years before the institution of this action has resulted mainly from transactions involving the sale and purchase of electricity, although the plaintiff from time to time has furnished coal and coke and various other materials to the defendant, and the defendant, which also owns and operates a telephone system and an appliance store in Preston County, has furnished telephone service, electrical materials and supplies, and labor to the plaintiff. During a part of the period of the existence of the present account, in making its partial payments, the defendant deducted the amount of its invoices from the larger invoices sent to it by the plaintiff and paid the plaintiff the amount of the difference. During the five year period, from April 1953 to April 1958, the total amount of the invoices, except three, rendered by the plaintiff to the defendant and charged against its account was $510,789.12. From that amount the defendant deducted $59,930.12 which represented the amount of the invoices rendered by it and charged against the plaintiff and paid the plaintiff, by checks of the defendant, the sum of $450,858.45. These two sums together equal the amount of the invoices rendered the defendant by the plaintiff during the foregoing five year period, except invoices for the months of April, May and June, 1953. From January 1, 1955 through April 1, 1958, however, any payments made by either party to the other were identical with the amounts of the current invoices without deduction; and during that period the plaintiff paid the defendant each month by check an amount which corresponded with the amount of the invoice which the defendant transmitted to the plaintiff.

H. C. Greer controlled the management and the policies of each company from its inception until his death in 1948. The plaintiff and the defendant have always maintained separate offices, have kept separate books and bank accounts, and have made separate tax returns; and during most of the time each has had a separate bookkeeper. The office of the plaintiff has been located at Cascade and the office of the defendant has been located at Masontown, in Preston County. The distance between the two offices is about one mile. Until sometime in 1955 the same persons were officers in both companies.

After Greer's death, his widow, Mrs. H. C. Greer owned a majority of the stock in the coke company and during 1951 her daughter, then Jane Raese, now Jane Kelly, obtained control of the power company. On May 3, 1955 Jane and her then husband Dyke Raese were divorced and on May 6, 1955, she married H. B. Kelly in Florida. Several days later Raese resigned as president and director of the power company and on August 12, 1955, Jane Kelly became and still is its president and treasurer. On December 19, 1955, James C. Crane, whose employment by the power company began in August 1953, became and still is its vice president and since August 1955 he has been it comptroller. Since his election to those offices he has signed the checks that have been issued and delivered to the plaintiff.

A. W. Hawley, who was first employed by the plaintiff in 1908, has been its president since 1948 although he has not been active in its management after his retirement from his duties in 1953. He was also vice president of the power company from 1923 until the early part of 1954. From January 1939 through January 1950 all entries in the ledger sheets of the plaintiff relating to its account with the defendant were in his handwriting and until April 1953 all checks issued by the defendant for payments to the plaintiff were signed by him as its vice president. H. W. Moore, who has been general manager and treasurer of the...

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23 cases
  • Petros v. Kellas
    • United States
    • West Virginia Supreme Court
    • October 24, 1961
    ...a verdict adverse to such party can not stand, the court should direct a verdict in his favor. Preston County Coke Company v. Preston County Light and Power Company, W.Va., 119 S.E.2d 420; Mulroy v. Co-Operative Transit Company, 142 W.Va. 165, 95 S.E.2d 63; Adkins v. Aetna Life Insurance Co......
  • Truman v. Fidelity & Cas. Co. of N. Y.
    • United States
    • West Virginia Supreme Court
    • November 14, 1961
    ...and preponderance of conflicting evidence, will on proper motion be set aside by the court.' Preston County Coke Co. v. Preston County Light and Power Co., W.Va., Pt. 5 Syl. (119 S.E.2d 420). Steptoe & Johnson, Stanley C. Morris, Carl F. Stucky, Jr., Charleston, for plaintiff in Laird, Thri......
  • Hollen v. Linger
    • United States
    • West Virginia Supreme Court
    • November 29, 1966
    ...it appears that the complaining party was not prejudiced by the giving of such instruction. Preston County Coke Company v. Preston County Light and Power Company, 146 W.Va. 231, 119 S.E.2d 420; Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598; Cato v. Silling, 137 W.Va. 694, 73 S.E.2d 731, ......
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    • West Virginia Supreme Court
    • May 9, 1963
    ...the creditor to whom the payments are made may apply such payments as he may choose to apply them. Preston County Coke Company v. Preston County Light and Power Company, W.Va., 119 S.E.2d 420; The Tildesley Coal Company v. American Fuel Corporation, 130 W.Va. 720, 45 S.E.2d 750; Wait v. Hom......
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