Staples v. Left Fork Fuel Co.

• Decision Date: 20 October 1953
• Docket Number: No. 10568,10568
• Citation: 138 W.Va. 819,77 S.E.2d 872
• Court: West Virginia Supreme Court
• Parties: STAPLES et al. v. LEFT FORK FUEL CO.

Page 872

77 S.E.2d 872

138 W.Va. 819

STAPLES et al. v. LEFT FORK FUEL CO.

No. 10568.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 1953.

Decided Oct. 20, 1953.

Syllabus by the Court.

1. A motion for a continuance is addressed to the sound and reviewalbe discretion of a trial court. The action of such court in overruling a motion of that character, in the absence of abuse of such discretion, is not ground for reversal.

2. 'If the jurisdiction of the trial court sufficiently appear from any part of the record, this court will not reverse a final judgment rendered upon the merits, on account of error committed in the trial of an issue on a plea to the jurisdiction.' Pt. 4, syl., Danser v. Dorr, 72 W.Va. 430 .

3. 'In the absence of an agreement to the contrary the place of the residence of the creditor is the place of payment of a debt. It is the duty of the debtor to seek his creditor and make payment to him' Pt. 3, syl., Jones v. Main Island Creek Coal Co., 84 W.Va. 245 .

4. A cause of action arises in a county within the meaning of Code, 56-1-2, where the violation or breach of duty occurs.

5. It is not a defense to an action for the recovery of a debt to show that the creditor violated a regulation or statute of the United States of America, relating to price stablization, in the absence of proof that such violation consisted in charging prices greater than the permitted maximum fixed by such statute and regulation.

6. It is not error to refuse an instruction which tends to confuse or mislead the jury.

Mahan, White & Higgins, Fayetteville, John A. Lile, Lewisburg, for plaintiff in error.

Kay, Casto & Chaney, Robert H. C. Kay, Charleston, for defendant in error.

LOVINS, Judge.

Maud A. Staples, W. A. Staples and H. H. Staples, a partnership, doing business as T. C. Staples Construction Company, filed a notice of motion for judgment in the Circuit Court of Nicholas County, against Left Fork Fuel Company, a corporation.

The purpose of this proceeding is to recover money due the plaintiffs for the rental of certain road building machinery from December 1, 1949, to and including December 11, 1951, amounting to $42,574.57, and the sum of $45.45 for machinery parts furnished defendant by plaintiffs in the month of October, 1951.

Plaintiffs filed a verified and itemized statement of their account with their notice of motion. Defendant appeared specially and filed a verified plea in abatement, challenging the jurisdiction of the trial court on the grounds that Nicholas County was not the proper venue. Defendant also filed a verified plea of the general issue, denying that it owed plaintiffs any amount. A trial of issues so made resulted in a jury verdict in the amount of $44,701.58, the jury in its verdict having added the sum of $2,081.56 to the amount claimed by plaintiffs, evidently as interest.

The trial court, after overruling motions to set aside its verdict and in arrest of judgment, entered judgment for the amount thereof. Defendant prosecutes this writ of error.

The notice of motion for judgment was returnable on the 1st day of March, 1952. Service of notice was accepted by the Auditor of the State of West Virginia, more than twenty days prior to the return date, and was filed in the office of the clerk of the trial court more than five days before such return date.

By agreement of counsel, a trial of the action was continued to the May, 1952 term of court. At such May term, the action was placed on the trial docket for hearing on the 29th day of May, 1952. On the day so fixed, the defendant appeared specially and, by agreement, filed the plea in abatement above mentioned, to wich the plaintiffs replied generally, no objection having been made for failure to timely file such plea.

After an extended colloquy between counsel for plaintiffs and defendant and the judge of the trial court, the plea in abatement was 'overruled'. Upon the rejection of the plea in abatement, defendant moved for a continuance, which was likewise overruled, and the trial on the merits commenced.

This writ of error involves a jury verdict in favor of the plaintiffs. We therefore treat as facts those shown by the testimony adduced in behalf of the plaintiffs, though there is conflicting evidence showing a different state of facts adduced by the defendant. Wiseman v. Ryan, 116 W.Va. 525, 182 S.E. 670. See Meyn v. Dulaney Miller Auto Co., 118 W.Va. 545, 191 S.E. 558; Coleman v. Norfolk & W. Railway Co., 100 W.Va. 679, 131 S.E. 563.

The plaintiffs, whose primary business is that of road building, were engaged in strip mining of coal, near the line between Nicholas and Greenbrier Counties. The defendant was engaged in a similar mining operation near that of the plaintiffs. The defendant hauled, by motor truck, the coal it mined over and upon a certain private roadway. It seems that the plaintiffs and defendant were engaged in negotiations relative to the plaintiffs leasing land either owned by, or leased to the defendant. In the course of these negotiations, W. A. Staples, who seems to have been the managing partner of plaintiffs' operations, was informed by the president of defendant company, that the road over which defendant hauled the coal was in bad condition, and that the equipment theretofore used by the defendant in keeping the road in repair had broken down. W. A. Staples, accordingly, sent a motor grader, a carryall and tractor, and a bulldozer to the operation of defendant on different dates. Employees of the plaintiffs operated some of the equipment on the road used by the defendant. The plaintiffs paid certain wages and charges for two of these employees until the employees were placed upon the payroll of defendant.

Plaintiffs also furnished certain parts for the machinery. Different statements were rendered by the plaintiffs for the charges against defendant for wages, workmen's compensation charges, unemployment compensation charges, employer's social security and most of the equipment parts. All of the statements so rendered seem to have been paid to plaintiffs at Summersville, West Virginia.

The statements of charges furnished by the plaintiffs to the defendant had written thereon: 'Please Remit To Our Field Office At Summersville, W. Va.' In one of the letters transmitting such statements, plaintiffs informed defendant that the statement did not include the equipment rentals.

On August 7, 1951, the plaintiffs rendered a statement of charges to defendant for rental of machinery amounting to $22,992.25. Accruals of rentals subsequent to July 31, 1951, increased the amount due for rentals of equipment and some of the equipment parts, with interest, to $44,701.58.

On one occasion, the president of the defendant went to the field office of the plaintiffs at Summersville, and there discussed with W. A. Staples the question of payments of the equipment rentals. On that occasion, the president of the defendant attempted to obtain an agreement with two other persons who were mining coal on the defendant's land and using the road above mentioned, to the effect that such persons would pay a portion of the equipment rentals, but nothing resulted from that attempt.

The defendant takes the position that it was under the impression that the plaintiffs furnished the equipment as a mere graturity and for mutual benefit and advantage in keeping the road ready for use.

The defendant, however, through its president, admits that all rentals of machinery accruing after August 7, 1951, amounting to $10,285.55, with accrued interest of $259.65, aggregating the sum of $10,645.20, is due the plaintiffs.

The defendant offered evidence to show that the plaintiffs had not complied with the statutes and regulations relating to price stabilization, enacted and promulgated by the government of the United States. Upon objection, the court rejected the testimony and thereupon the defendant vouched the record. The avowal of this testimony shows that the plaintiffs did not comply with the regulations of the Office of Price Stabilization, but it is shown that the plaintiffs and defendant changed the basis of rental charges for some of the equipment from a monthly rate to an hourly rate, and that plaintiffs received informal permission for such change from the Office of Price Stabilization. The record fails to disclose that there was any overcharge made by the plaintiffs against the defendant. The change from an hourly basis to a monthly basis on rental of some of the equipment was made after plaintiffs and defendant had agreed to such change, made at the request of the defendant.

Defendant contends that the trial court erred: (a) In overuling defendant's motion for a continuance, and compelling a trial on the merits immediately after rejecting the plea in abatement; (b) in rejecting the defendant's plea in abatement without a trial of the issues raised by that plea; (c) in rejecting evidence relative to violations of the regulations and statute concerning price stabilization as to the rental of machinery; (d) in refusing to give defendant's instruction number 1 as offered.

There was a colloquy between counsel for the litigants and the judge of the trial court, relating to the continuance and the plea in abatement, which covers approximately twenty pages of the printed record. Many uncertain and indefinite statements are found in such colloquy. There is no formal showing in the record that would justify the trial court in sustaining the motion for a continuance. A motion for a continuance is addressed to the sound, but reviewable, discretion of the trial court. Hutchinson v. Montgomery Memorial Park Corp., 128 W.Va. 419, 424, 36 S.E.2d 889. See State v. McDonie, 96 W.Va. 219, 123 S.E. 405, 37 A.L.R. 699; State v. Jones, 84 W.Va. 85, 99 S.E. 271. The court did not abuse that discretion in overruling the motion made by the defendant for a countinuance.

The plea in abatement is not demurrable as a...