Rosencrance v. Kelley
| Decision Date | 14 April 1914 |
| Parties | ROSENCRANCE v. KELLEY ET AL. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Where a declaration in assumpsit contains the common counts, and a special count on a written contract, as a basis for recovery of an agreed rental of machinery and unliquidated damages thereto occasioned by negligence imputed to defendants, the latter may, upon affidavit when necessary, plead to the action at any time before final judgment, upon a duly executed writ of inquiry.
Until the execution of such writ, where requisite, an office judgment does not become final, precluding the right to plead to the action.
Additional Syllabus by Editorial Staff.
Where the amount of damages is an uncertain element, and not capable of computation, a writ of inquiry should be executed to ascertain the exact amount.
Error to Circuit Court, Randolph County.
Assumpsit by J. M. Rosencrance against Lee J. Kelley and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded.
Jared L. Wamsley, of Elkins, for plaintiffs in error.
C. H Scott and H. G. Kump, both of Elkins, for defendant in error.
Plaintiff sues in assumpsit for the recovery of rent due, as he avers upon a written contract whereby he leased to defendants an engine and boiler for use by them as part of a sawmill to cut timber into lumber, and of damages for the negligent abuse of both engine and boiler. The rent reserved was 25 cents for each 1000 feet of lumber cut by defendants. According to the contract stated in the declaration defendants agreed to return the machinery in good condition, with the proviso that if the engine burst without fault on their part they were to be absolved from liability therefor. Plaintiff charges noncompliance with the contract, both as to payment of rent and return of the machinery in good condition. The arrearage of rent claimed is $12.25; the damages for injury to the machinery, $224.50.
The declaration contains the common counts, and a special count on the contract. Upon return of process duly executed, the clerk entered the common order at August rules, 1911, and at September rules confirmed the common order, filed plaintiff's affidavit, and awarded a writ of inquiry. Defendants did not appear until the second term next ensuing the proceedings at rules. They then tendered an affidavit in the form prescribed by section 46, c. 125 (section 4800) Code 1913, and the plea of the general issue, both of which the court rejected, and on plaintiff's motion entered the judgment to which this writ of error was allowed.
From the recitals in the order awarding judgment appears the only reason for the court's ruling upon the tender of defendants' affidavit and plea. The reason it assigned was that plaintiff, having filed at September rules his affidavit pursuant to section 46, showing the amount then due, was entitled to final judgment at the October term next ensuing, and that, as no action was then taken or motion therefor made, or any appearance or plea and affidavit by defendants at that term, the only legitimate action at any succeeding term was the entry of a final judgment for plaintiff. In this conclusion we cannot concur.
Except the small item of rent, plaintiff's claim is for damages resulting from negligence in the care, use, and operation of the leased machinery. While the contract bound defendants to return the machinery in good condition, it also...
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