Stephens v. Bartlett, (No. 8467)

CourtSupreme Court of West Virginia
Writing for the CourtMAXWELL.
Citation118 W.Va. 421
PartiesW. L. Stephens v. Howard Bartlett et al
Decision Date23 March 1937
Docket Number(No. 8467)

118 W.Va. 421

W. L. Stephens
v.
Howard Bartlett et al

(No. 8467)

Supreme Court of Appeals of West Virginia.

Submitted February 24, 1937.
Decided March 23, 1937.


[118 W.Va. 421]

1.Contracts

"It is the province of the court, and not of the jury, to interpret a written contract." Franklin v. Lumber Co., 66 w. Va. 164, 66 s. e. 225.

2.Appeal and Error

An appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence.

Error to Circuit Court, Roane County.

Proceeding on motion for judgment by W. L. Stephens against Howard Bartlett and Sarah Mace, administratrix of the personal estate of Van Mace, supplemental to an action on a written contract. To review a judgment for plaintiff, defendants bring error.

Affirmed.

Thos. P. Ryan and Wm. S. Ryan, for plaintiffs in error. Grover F. Hedges, for defendant in error.

Maxwell, Judge:

This is a proceeding on motion for judgment by W. L. Stephens against Howard Bartlett and Sarah Mace, administratrix of the personal estate of Van Mace, deceased. On writ of error there is presented for review a judgment for $783.88, on verdict, in favor of the plaintiff and against the defendants. A new provision of statute, Code 55-8-8, makes it possible, in an action on contract, to join as defendant with a living obligor the personal representative of a deceased obligor. Prior to the enactment of said statute this could not be done. I Barton's Law Practice (2d Ed.), p. 144; IV Minor's Institutes (3d Ed.), p. 447.

[118 W.Va. 422]

The action is based on a written contract dated July 10, 1933, between W. L. Stephens, party of the first part, and Howard Bartlett and Van Mace, parties of the second part. The contract was for the drilling of a well for oil and gas purposes on a lease owned by Bartlett and Mace. The contract provided that for services rendered and materials furnished by Stephens in the drilling of the well, he should be paid $2400.00, and assigned an undivided 8/32 of the working interest in the lease. The lessees were "stocking out" the working interest in the lease at the price of $130.00 for each 1/32. The contract carries a provision that the six and fiveeights inch casing required to be used in the drilling of the well should be furnished by Stephens; further, if the well should prove to be a producer of oil or gas, the said casing should be purchased of Stephens by Bartlett and Mace at the price of fifty cents per lineal foot. No provision was made for the purchase of the casing by the lessees if the well should be non-productive, evidently because, in that event, they would not need the casing.

In pursuance of the contract, Stephens drilled the well. When the time arrived for the six and five-eighths inch casing to be inserted into the well under the established method in the course of drilling, Stephens brought to the well for the purpose of using therein some casing which Mace thought was too light. Thereupon, heavier casing was obtained from Max Baren, a dealer in oil and gas well supplies at Parkersburg. The sale price charged by Baren for the casing was $1029.15. Baren seemed to have some doubt about the financial strength of Stephens, therefore, on Baren's books of account, a charge for the casing was entered against Bartlett and Mace, though Baren, at the trial, testified that Mace told him the casing was to be used by Stephens and should be charged to him. The casing was acquired from Baren under a trade custom whereby, if a...

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48 practice notes
  • Franklin. v. Pence, (No. 9699)
    • United States
    • Supreme Court of West Virginia
    • December 11, 1945
    ...On this question the jury found in favor of the plaintiffs, and that finding will not be disturbed by this Court. Stephens v. Bartlett, 118 W. Va. 421, 191 S. E. 550; Aliff v. Berryman, 111 W. Va. 103, 160 S. E. 864; Fuel Distributors v. Payne-Baber Coal Co., 107 W. Va. 465, 148 S. E. 854; ......
  • Tracy v. Cottrell, No. 25845.
    • United States
    • Supreme Court of West Virginia
    • November 12, 1999
    ...by the trial court, unless the verdict is against the plain preponderance of the evidence.' Point 2, Syllabus, Stephens v. Bartlett, 118 W.Va. 421[, 191 S.E. 550 (1937)]." Syllabus point 1, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 In determining whether the verdict of ......
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...by the trial court, unless the verdict is against the plain preponderance of the evidence.' Point 2, Syllabus, Stephens v. Bartlett, 118 W.Va. 421[, 191 S.E. 550 (1937) ]." Syl. pt. 1, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963). [i]n determining whether the verdic......
  • Kane v. Corning Glass Works, No. 16078
    • United States
    • Supreme Court of West Virginia
    • October 17, 1984
    ...127 W.Va. 409, 33 S.E.2d 140 (1945); Syl. pt. 1, Ware v. Hays, 119 W.Va. 585, 195 S.E. 265 (1938); Syl. pt. 2, Stephens v. Bartlett, 118 W.Va. 421, 191 S.E. 550 (1937); Syl. pt. 1, Kaufman v. Charleston Transit Co., 117 W.Va. 591, 186 S.E. 617 (1936); Syl. pt. 2, Hohmann v. County [175 W.Va......
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48 cases
  • Franklin. v. Pence, (No. 9699)
    • United States
    • Supreme Court of West Virginia
    • December 11, 1945
    ...On this question the jury found in favor of the plaintiffs, and that finding will not be disturbed by this Court. Stephens v. Bartlett, 118 W. Va. 421, 191 S. E. 550; Aliff v. Berryman, 111 W. Va. 103, 160 S. E. 864; Fuel Distributors v. Payne-Baber Coal Co., 107 W. Va. 465, 148 S. E. 854; ......
  • Tracy v. Cottrell, No. 25845.
    • United States
    • Supreme Court of West Virginia
    • November 12, 1999
    ...by the trial court, unless the verdict is against the plain preponderance of the evidence.' Point 2, Syllabus, Stephens v. Bartlett, 118 W.Va. 421[, 191 S.E. 550 (1937)]." Syllabus point 1, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 In determining whether the verdict of ......
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...by the trial court, unless the verdict is against the plain preponderance of the evidence.' Point 2, Syllabus, Stephens v. Bartlett, 118 W.Va. 421[, 191 S.E. 550 (1937) ]." Syl. pt. 1, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963). [i]n determining whether the verdic......
  • Kane v. Corning Glass Works, No. 16078
    • United States
    • Supreme Court of West Virginia
    • October 17, 1984
    ...127 W.Va. 409, 33 S.E.2d 140 (1945); Syl. pt. 1, Ware v. Hays, 119 W.Va. 585, 195 S.E. 265 (1938); Syl. pt. 2, Stephens v. Bartlett, 118 W.Va. 421, 191 S.E. 550 (1937); Syl. pt. 1, Kaufman v. Charleston Transit Co., 117 W.Va. 591, 186 S.E. 617 (1936); Syl. pt. 2, Hohmann v. County [175 W.Va......
  • Request a trial to view additional results

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