Stephens v. Bartlett, (No. 8467)

Docket Number(No. 8467)
Decision Date23 March 1937
CourtWest Virginia Supreme Court
PartiesW. L. Stephens v. Howard Bartlett et al

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...

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