Pure Oil Co v. Voltz, 8068.

• Decision Date: 10 December 1935
• Docket Number: No. 8068.,8068.
• Citation: 182 S.E. 825
• Court: West Virginia Supreme Court
• Parties: PURE OIL CO. v. VOLTZ et al.

182 S.E. 825

PURE OIL CO.

v.VOLTZ et al.

No. 8068.

Supreme Court of Appeals of West Virginia.

Dec. 10, 1935.

Syllabus by the Court.

A trial court should refuse an instruction calculated to mislead the jury.

Error to Circuit Court, Ohio County.

Action by notice of motion for judgment by the Pure Oil Company against E. G. Voltz and A. M. Schick, trading under the name of "Savoy Garage." Verdict against defendants. To review an order setting aside the verdict as to defendant A. M. Schick, plaintiff brings error.

Order reversed, and judgment rendered.

McCamic & Clarke and Jay T. McCamic, all of Wheeling, for plaintiff in error.

Hall, Goodwin & Paul, of Wheeling, for defendant in error Schick.

LITZ, President.

Plaintiff, the Pure Oil Company, obtained a verdict against defendants, E. G. Voltz and A. M. Schick, trading under the name of "Savoy Garage, " which was, upon motion of Schick, set aside as to him, and plaintiff prosecutes error.

The action is by notice of motion for judgment upon a claim for merchandise, sold and delivered by plaintiff to defendants, in the sum of $1,214.19. Both defendants pleaded the general issue. Schick also filed a special pica denying the partnership.

On March 26, 1929, a written declaration of interest, signed by Voltz and Schick, was recorded in the office of the clerk of the county court of Ohio county, presumably in pursuance of section 2, article 8, chapter 47, Code 1931 (commonly known as the "fictitious" or "assumed" name statute), stating: "This is to certify that the undersigned, E. G. Voltz and A. M. Schick, are conducting a garage business under the firm name and title of 'Savoy Garage, ' and that they are the sole owners of same; that it is located at and its principal office is No. 139 Zane Street, in the City of Wheeling, Ohio County, West Virginia, and that their postoffice address is at said principal office." This record remained unchanged until February 18, 1932, after the accrual of the indebtedness sued for, when a similar certificate, signed by Voltz, was recorded, reading: "This is to certify that E. G. Voltz is doing business under the name and style of 'Savoy Garage, ' and that I am the sole-owner of said garage, which is located at 139 Zane Street, Wheeling, West Virginia. I also certify that my residence is 3310 Jacob Street, Wheeling, West Virginia." There was also substantial oral testimony and cogent circumstances tending to establish the partnership.

The verdict was set aside on motion of defendant Schick because of the refusal of an instruction that "the burden of proof is on the plaintiff to make out his case by a preponderance of the evidence." As stated in the written opinion of the court,...