Rees Elec. Co. v. Mullens Smokeless Coal Co.

• Decision Date: 01 November 1955
• Docket Number: No. 10724,10724
• Citation: 141 W.Va. 244,89 S.E.2d 619
• Court: West Virginia Supreme Court
• Parties: REES ELECTRIC COMPANY, Inc. v. MULLENS SMOKELESS COAL COMPANY.

Page 619

89 S.E.2d 619

141 W.Va. 244

REES ELECTRIC COMPANY, Inc. v. MULLENS SMOKELESS COAL COMPANY.

No. 10724.

Supreme Court of Appeals of West Virginia.

Argued Sept. 13, 1955.

Decided Nov. 1, 1955.

Syllabus by the Court.

1. The general rule is that admissions and declarations of a person claiming to be an agent of another person are not admissible against such other person to prove the agency.

2. The authority of an agent to perform the act in question must be proved.

3. A person who deals with an agent is bound at his peril to know the authority of the agent.

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

5. A verdict clearly in excess of the amount which the evidence shows the plaintiff is justly entitled to recover should be set aside by the trial court.

6. An instruction which is not based upon the evidence should be refused.

Scherer, Bowers & File, L. L. Scherer, Beckley, for plaintiff in error.

Anthony J. Sparacino, Roy A. Cunningham, Beckley, for defendant in error.

HAYMOND, Judge.

This action of assumpsit was instituted in the Circuit Court of Raleigh County in January, 1954. The plaintiff, Rees Electric Company, Inc., upon a declaration containing the common counts in assumpsit, seeks to recover from the defendant, Mullens Smokeless Coal Company, a corporation, the sum of $1,178.84, with interest, upon an account the items of which are set forth in a bill of particulars filed with the declaration. The defendant filed a special plea alleging that the causes of action mentioned in the declaration are based upon an attempt to charge the defendant upon a promise, not in writing, to answer for the debt of another, and its plea of the general issue.

Upon the foregoing pleadings the case was tried in March, 1954, at which time the jury was unable to agree upon a verdict and was discharged. Before the second trial, the defendant filed an additional special plea by which it tendered and offered to pay into court the sum of $126.04, the amount of one of the items of the account mentioned in the bill of particulars, and denied that it owned the plaintiff any other sum of money and denied liability for damages by reason of the nonpayment of the sum of $126.04.

At the conclusion of the evidence introduced by the plaintiff, the defendant moved the court to strike the evidence offered by the plaintiff and to direct the jury to return a verdict for the defendant. The court sustained the motion as to five items of the claim of the plaintiff specified in the bill of particulars, aggregating $513.13, and instructed the jury not to allow that amount, but overruled the motion as to the other items of the account and permitted those items to be considered by the jury. The jury returned a verdict in favor of the plaintiff for $703.01, which included all the items of the plaintiff's claim, with interest, except the five items aggregating $513.13. The court overruled the motion of the defendant to set aside the verdict as to all the items, except the item of $126.04, the amount tendered by the defendant, and to grant it a new trial, and by order entered July 20, 1954, rendered judgment upon the verdict for the amount found by the jury with interest and costs against the defendant. To that judgment this Court granted this writ of error upon the petition of the defendant.

For several years prior to 1951 the defendant owned about 500 acres of coal in Wyoming County and a plant and equipment which it operated in producing and marketing the coal. In 1951 it leased the coal and the plant to four persons who operated the mine under the name of Todd Smokeless Coal Company until the latter part of that year when they ceased their operation and surrendered the property to the defendant. By a written agreement dated February 11, 1952, but not executed and delivered until August 26, 1952, the defendant leased the property to J. R. Burke, J. S. Wood, C. G. Leedy and Hazel Meade Harris, a daughter of H. N. Meade, who is the president of the defendant Mullens Smokeless Coal Company. This lease was for a period of ten years at a royalty of fifty cents for each ton of coal mined and a royalty of twenty cents for eacn ton of coal purchased and shipped over the tracks or the tipple on the premises and provided that the lessees should have the right to assign the lease to Harmco Smokeless Coal Company, a corporation, which they proposed to form, and did organize, under a corporate charter issued by the Secretary of State of this State on July 16, 1952. The lease also required the lessees to keep the machinery and the equipment on the premises, described in the lease, in good order and repair and to return them to the lessor in as good repair as they were at the time of the execution of the lease, except reasonable wear and tear. The lease was never recorded and it was not transferred by the lessees to the Harmco Smokeless Coal Company by any written assignment. The lessees never operated the mine as individuals but the Harmco Smokeless Coal Company took possession of the premises under the lease with the consent of the lessor and that company operated the mine for sometime prior to April 1, 1953, when, the operation being unsuccessful, the lease was surrendered and possession of the property was delivered to its owner the defendant which operated it after that date.

The four lessees were stockholders of the Harmco Smokeless Coal Company and three of them were its officers. Burke was president, Wood was secretary and treasurer, and Leedy was general manager. Hazel Meade Harris, the other stockholder, was absent from West Virginia during the operation of the mine by that company and she did not participate in its management or operation of the plant. By letter dated November 3, 1952, signed by Burke as president, F. E. Hill was employed as superintendent of the mine. His employment began on November 15, 1952, and he continued in that position until possession of the property was taken by the defendant on April 1, 1953, when he was employed by it and he continued in its temporary employment as repairman or machanic until sometime in October of that year. H. N. Meade, the president of the defendant, did not know Hill and Hill did not know Meade until Hill was employed by Burke in November, 1952, though prior to that time the president of the defendant learned from Burke that Hill was or would be employed by the Harmco Smokeless Coal Company. Meade was not a stockholder or an officer of Harmco Smokeless Coal Company, and though he visited the mine a few times while Harmco Smokeless Coal Company was in possession of the property and negotiated the sale of some coal for it, he did not direct or supervise or participate in the operation of the property during the existence of the lease.

While Hill was acting as the superintendent of the mine, which was located at Nuriva, Wyoming County, West Virginia, he communicated by telephone with Arthur Rees, President and Manager of the plaintiff Rees Electric Company, and requested Rees to perform some work on some of the equipment at the mine. Pursuant to and following this request the plaintiff performed labor and furnished material in repairing machinery and equipment at the mine between December 3 and December 12, 1952, for which four separate written invoices and delivery tickets were prepared and sent to Hill at the mine. These papers show that the services were rendered for and the material furnished to Mullens Smokeless Coal Company and the delivery ticket in each instance was signed by Hill.

The first of these four invoices was for labor performed on an armature on December 3, 1952, amounting to $33.10, the second was for labor performed and material furnished in connection with a field coil on December 3, 1952, amounting to $66.00, the third was for labor performed and material furnished on December 5, 1952, amounting to $428.48, and the fourth was for a magnet coil furnished on December 12, 1952, amounting to $12.09. The total charge for these services and materials was $539.67, and these items were specified in the bill of particulars.

At the time these services and materials were furnished Meade was in Florida and did not know anything about them until after December 12, 1952. He visited the mine, however, during the latter part of that month and discovered the four invoices made to Mullens Smokeless Coal Company on the desk in the office of the Harmco Smokeless Coal Company. When Meade learned of these four invoices he communicated with Rees by telephone and told him that the Mullens Smokeless Coal Company was not operating the mine and that the invoices should be made to the Harmco Smokeless Coal Company.

Subsequently the plaintiff performed labor or furnished material for the mine at the instance of Hill on December 29, 1952, January 9, 1953, January 23, 1953, and January 30, 1953. For these items five invoices and four delivery tickets were prepared. In each instance the invoice was made to the Harmco Smokeless Coal Company and the delivery ticket was signed by Hill. The invoice for the item furnished December 29, 1952, amounted to $24.90; one invoice for an item furnished January 9, 1953, amounted to $74.65 and another invoice for an item furnished on the same date amounted to $337.00; the invoice for the item furnished January 23, 1953, amounted to $10.58; and the invoice for the item furnished January 30, 1953, amounted to $66.00. The aggregate of these five invoices was $513.13, and, as to the items covered by them, the court instructed the jury that there could be no recovery by the plaintiff and the jury omitted the amount of $513.13 from the verdict.

On March 31, 1953, the plaintiff, at the instance of Hill, performed labor on some equipment used at the mine and prepared and sent to the mine an...