Townsend v. Brushy Run Lumber Co.
| Decision Date | 06 October 1914 |
| Citation | 75 W.Va. 47 |
| Court | West Virginia Supreme Court |
| Parties | Townsend v. Brushy Run Lumber Company. |
1. Evidence Burden of Proof Counterclaim.
Credit for a counter claim is properly refused by a jury, where there is no evidence of the validity or correctness of the account relied on. (p. 49).
2. Justices of the Peace Appeal Assignment of Claim.
Notwithstanding assignment by plaintiff of his claim, after judgment thereon in his favor before a justice, the action, upon appeal by defendant, may still be prosecuted in the circuit court in the name of the assignor, (p. 49).
3. Appeal and Error Record Justice's Court.
The judgment of a circuit court in a case appealed from a justice will not be reversed for failure of the record to disclose entry of a plea and joinder of issue thereon, (p. 50).
4. Justices or the Peace Review of Proceedings Harmless Error.
If the account filed by plaintiff with a justice, and fully proved in the circuit court on appeal, is sufficient to inform defendant of the nature and amount of the claim sued on, the judgment of the circuitcourt will not be reversed on writ of error solely because of plaintiff's failure to file a formal complaint, where it appears defendant could not have been prejudiced by the omission and did not demand such complaint or object because of failure to file it. (p. 50).
Price, Osenton & Koran, for plaintiff in error.
F. B. Hill and L. M. McQlintic, for defendant in error.
Upon a trial before a justice, and before the circuit court on appeal, Townsend recovered judgment against the Brushy Run Lumber Company, the reversal of which it seeks on writ of error.
Townsend agreed to haul logs for the company, pursuant to the terms and conditions and for the consideration stated in a written contract entered into and signed by both of them After partial performance of the work undertaken, he, with the consent of the company, substituted in his stead W. A. and Gr. P. McCray, who agreed to complete the work under the original agreement, At the same time, and by like consent, the provision of the contract which authorized the company to retain twenty-five per cent of the payments due monthly as a guaranty for full performance of the work was amended so as to recognize the right of the McCrays to finish the hauling and to permit the further retention by the company of the money then due Townsend until the McCrays had finally completed the work, when, according to the clause added, the company agreed "to pay all the money that is in their hands in the shape of a guaranty fund to Mr. Townsend for the work he did up to the time the credit of the work is transferred to McCray Brothers, and when this is done as outlined in said contract and guaranty fund paid this contract shall be cancelled, and of no further effect".
To recover the money earned by him and retained by the company as such indemnity, plaintiff sued, after the McCrays had fully complied with the terms of the original agreement, claiming as due him from the company the sum of $298.34, and for which he obtained judgment. The company denies any indebtedness from it to him. That the contract was fully complied with and the work therein provided for entirely completed, defendant concedes. But it seeks to defeat recovery on the ground that, before completion, the McCrays had received payments and credits in excess of the amount due him, including that retained by it earned by Townsend before the McCrays undertook to complete his agreement.
As grounds for reversal, in addition to the rulings on the usual formal motions., defendant relies on what it claims to he an erroneous instruction given for plaintiff and a correct instruction for it which the court refused; the failure of the jury to give it credit for $146.74, "store bill for November, 1909", which it claims was inadvertently omitted from its account; Townsend's assignment of the account; and, upon argument, on the further ground that the ease was tried, both before the justice and in the circuit court, without a formal complaint by plaintiff or plea by defendant.
It is evident that the instruction o:? which defendant complains was intended to construe the clause amending the eontract. In effect, it told the jury that, if the McCrays completed the work provided for in the original contract, Townsend then became entitled to the money due for the work done by him under the original agreement, and that the burden rested upon him to show the amount so due. As thus interpreted, the-instruction was manifestly correct. Because, as seems apparent, Townsend's right to the fund in the hands of the company was made to depend, not upon any default in payment of any indebtedness incurred by the McCrays to the company or any other person, but upon their full and final completion of the work provided for in the original agreement. The work having been satisfactorily completed. Townsend had a clear right to demand and sue for the fund so retained by the company. And it is equally evident the instruction asked by defendant, and refused by the court, was not correct; because of its misconstruction of the clause referred to.
Nor can we reverse the judgment on the further ground that the jury failed to allow credit for the November account. Its finding is conclusive. That account and the testimony touching it the jury considered, no doubt, and reached the conclusion that it was not a proper credit against plaintiff's claim. And its conclusion was clearly not erroneous; because the only witness examined on behalf ef defendant was apparently unwilling to say the...
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