Roberts. v. Lykins
| Decision Date | 26 October 1926 |
| Docket Number | (No. 5692) |
| Citation | 102 W.Va. 409 |
| Parties | E. L. Roberts et al. v. B. E. Lykins |
| Court | West Virginia Supreme Court |
1. Appeal and Error Error Not Specified on Motion for New Trial, or Not Made Subject of Special Bill of Exceptions, Will be Treated as Waived.
Error not specified on a motion for a new trial or not made the subject of a special bill of exceptions, will be treated as waived. Dransfield V. Motor Co., 102 W. Va. 370; Tread- way V. Coal Co., 102 W. Va. 135; Proudfoot v. Transporta- Hon Co., 100 W. Va. 733; Tripp ett V. Public Service Co., 100 W. Va. 319; Guyandotte Coal Co. v. Elec. & Mach. Works, 94 W. Va. 300; Moore field V. Lewis, 96 W. Va. 112; State V. Jones, 77 W. Va. 636; State v. Henaghan, 73 W. Va. 706; Gregory's Admr. v. R. Co., 37 W. Va. 606. (p. 412.) (Appeal and Error, 3 C. J. § 849; 4 G. J. § 1786.)
2. Trial Instruction, to Support Which There is no Evidence, is Improper; Where Plaintiffs Did Not Show Actual Representation by Defendants That Lease Sold Included Barber Shop, Instruction to Consider Rental Value of Shop in Determining What Rent Actually Costs Plaintiffs Was Error. An instruction to support which there is no evidence in the case is improper, and should not be given, (p. 413.) (Trial, 38 Cyc. p. 1618.)
Error to Circuit Court, Fayette County. Assumpsit by E. L. Roberts and another against B. E. Lykins. Judgment for plaintiffs, and defendant brings error. Judgment reversed; verdict set aside; new trial awarded.
Osenton & Lee, for plaintiff in error. Hubard, Bacon & Holt, for defendants in error.
The circuit court of Fayette county entered judgment on an $1820.00 verdict found for plaintiffs in their action of assumpsit, and the defendant claims error.
In the year 1921, plaintiff, E. L. Roberts, and defendant, B. E. Lykins, and S. D. Lykins, now deceased, entered into a partnership, each owning a 1/8 interest, for the purpose of conducting a mercantile business under name of Men's Shop, in the town of Mount Hope. S. I). Lykins obtained a lease for the store room in which the business was conducted, said room being located in the Central Hotel Building, then owned by Mrs. Rosa F. Bailey and her two daughters. E. L. Roberts had active charge of the business. Early in April, 1924, because of some dissatisfaction between Roberts and the other members, the latter offered to buy out the former for $5,000.00. Roberts refused. Shortly after, to-wit, April 22, 1924, Roberts and a man named Carper closed negotiations with the Lykins brothers for their two-thirds interest, and the four entered into and signed a written contract of sale, B. E. Lykins acting for himself and brother. By the terms of this contract B. E. Lykins and S. D. Lykins sold and conveyed to Roberts and Carper, in consideration of $8,000.00, their interest in what was known as the Men's Shop, of which Roberts and Carper were to assume all indebtedness, etc. The plaintiffs contend that the defendant, during negotiations, represented that he had a five-year lease on the building, and would assign same to plaintiffs along with the sale of his interest in the partnership; the defendant, however, denies these allegations, insisting that he had no such lease and expressly told the plaintiffs that it would be necessary for them to make arrangements with Mrs. Bailey for a lease, as his informatiion was that such lease as had been given for said premises was in the name of his brother, S. D. Lykins, and was not transferable. It is admitted by all the parties that about the time the contract of sale was executed that the plaintiffs had a written contract prepared to be executed by Mrs. Bailey, as guardian of her two daughters, agreeing to rent plaintiffs, as Men's Shop, "the store room they now occupy on the same terms and conditions as the lease now in force on said store room until my attorney can prepare proper lease, and 1 further agree that said lease will cover the same property and carry the same rent as said lease now in force when prepared." This paper was taken to Mrs. Bailey by Roberts before the checks were delivered to B. E. Lykins for the property. At the suggestion of Carper, defendant accompanied Roberts. The parties returned and Roberts informed Carper that Mrs. Bailey would not sign the contract presented to her because her attorneys had advised her not to sign any papers without their inspecting them, but that she would have a new lease drawn up for the same and send it down right away. The said Carper then asked Lykins if that was correct and Lykins answered that it was what Mrs. Bailey had said. Thereupon the checks were delivered by Carper to Lykins.
Some two weeks later the plaintiffs received a draft of a new lease from Mrs. Bailey which lease set the rent for the store room at one hundred dollars per month as against the fifty dollars per month paid by the original partnership. The question of whether the basement barber shop was embraced in the old lease, and the part that the rental therefor occupied in the transaction, will be dealt with later in this opinion.
The defendant sets out some seven errors which he claims to have been made by the trial court in the introduction and rejection of testimony. These assignments cannot be considered on this hearing, since the evidence sought to be rejected or introduced was not made the subject of special bills of exceptions, nor particularly pointed out to the trial court by defendant in the grounds of his motion for a new trial. Proud foot v. Transportation Co., 100 W. Va. 733; Trippett v. Public Service, Co., 100 W. Va. 319; Guyandotte Coal Co. v. Electric & Machinery Works, 94 "W. Va. 300; Moore-field v. Lewis, 96 W. Va 112; State v. Jones, 77 W. Va. 636; State v. Henaghan, 73 W. Va. 706; Gregory's Admr. v. R. R. Co., 37 W. Va 606. The foregoing principle has been...
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