Vale v. Suiter & Dunbar.
| Decision Date | 21 November 1905 |
| Court | West Virginia Supreme Court |
| Parties | Vale v. Suiter & Dunbar. |
A written contract, between other parties than the parties to a suit, which is referred to in the written contract sued upon and to any extent supplements the same, is admissible in evidence upon the trial, (p. 358).
Communications between a party to a suit and his employes, not in the presence of the adverse party and of which he has no notice, are not admissible in evidence in his behalf unless they are a part of the res gastae. (p. 361).
When a motion is made to strike out a portion of the testimony of a witness, the part of the testimony desired to be stricken out must be particularly and definitely pointed out. (p. 362).
Where a party by his own contract creates a duty or charge upon himself, his undertaking must be substantially complied with under any and all circumstances. To excuse a performance his contract must provide for it. (p. 363).
Appeal from Circuit Court, Mason County.
Action by A. W. Vale against Suiter & Dunbar. Judgment for plaintiff. Defendants bring error.
Reversed.
C. E. Hogg, Somerville & Somerville, and Hollis C. Johnson, for plaintiffs in error.
W. R. Gunn and J. S. Spencer, for defendant in error.
This is an action of assumpsit brought by A. W. Vale against Suiter and Dunbar, in the circuit court of Mason county to recover from defendants a balance claimed to be due by him for sawing into lumber and ties, timber furnished him at his portable saw mill by defendants on what was known as the William Miller Two Mile Creek Farm in Mason county, filing with his declaration a bill of particulars showing a balance due plaintiff of $860.42. The defendants entered their plea of non-assumpsit and filed a special plea in writing setting up a contract in writing made on the 5th day of May, 1900, between the plaintiff and the defendants, whereby the plaintiff in consideration that the defendants would pay him five cents for each tie manufactured from said timber, and three dollars per thousand for all other lumber or bill stuff, except ties gotten out, covenanted and agreed with said defendants that he would set up and put in good running order with a capacity of ten to twelve thousand feet per day a portable saw-mill with proper attachments for cutoff saw and edger on said farm and that he would make three sets for sawing on said premises and use good judgment in getting out all the lumber possible that would be marketable from the logs of said timber and agreed to saw standard ties, 6x8 inch, and 8 feet long, and 6x9 inch, 8 1/2 feet long; that he would furnish a grader for the inspection of the lumber and superintend the stacking of the same on the yard; that he would have the said mill set within six weeks after the signing of said agreement; that he would run the same steadily, save when prevented from so doing by unavoidable accidents and saw all timber as ordered by defendants, including oak, poplar, ash, hickory, linn, elm, buckeye, walnut, sycamore and beech, quartered oak excepted, and that afterwards the parties extended said contract on same terms as the original so as to include two additional sets of said mill on said farm; that said plaintiff not regarding his said several covenants, promises and agreements did not set up and put in good running order with a capacity of from ten to twelve thousand feet per day a portable sawmill with proper attachments for cutoff saw and edger on the farm and did not use good judgment in getting out all of the lumber possible that would be marketable from the logs gotten out of said timber and did not furnish a grader for the inspection of said lumber and did not superintend the stacking of the lumber as per agreement, and did not run the mill steadily save when prevented from so doing by unavoidable accidents, and did not saw all timber as ordered by the defendants, including the various kinds of timber mentioned, and that by reason of plaintiff's failure it became necessary for defendants to employ a man to do the grading plaintiff agreed to have done, and were compelled to take down lumber and re-grade and re-stack the same, whereby the defendants were damaged to the amount of $138.27; and that by reason of plaintiff's failure to run said mill steadily, as agreed, said defendants were delayed three months in getting out said lumber and having the same marketed and getting returns therefrom, by reason of which they were damaged on account of such delay for interest on money they were compelled to borrow the sum of $120; for insurance on said lumber for three months by reason of plaintiff's failure to comply with the said clause of the agreement, $31.89; for three extra men they were compelled to keep for three months by reason of plaintiff's failure to comply with said clause of said agreement, $330; and for loss of time suffered by G. W. Suiter and S. A. Dunbar for three months each by reason of such failure of plaintiff, $600; and for damages occasioned by flood to stock on yards which defendants were prevented from removing in time to avoid flood by reason of plaintiff's failure to run said mill steadily except when prevented from so doing by unavoidable accidents, $175; and by reason of such delay for three months defendants forfeited a contract which they had with Ellis & Ellis, of Baltimore, which expired on December 31, 1900, and which contract defendants could and would have fulfilled but for such failure of plaintiff, whereby they suffered damage to the amount of $250; also forfeited another contract for the same reason with Clark & Clark for the sale of ties whereby they suffered damages to the amount of $171.99; and that said defendants by reason of the said premises had sustained damages amounting in the whole to a large sum of money, to-wit: the sum of $1,817.10, which was still due and unpaid and owing from the plaintiff to defendants, and which was there pleaded as an offset against the plaintiff, which plea was verified by S. A. Dunbar, one of the defendants, to which special plea in writing plaintiff filed his general replication in writing and denied the truth of said plea and prayed that the same might be inquired of by the country. A jury was empaneled and sworn to try the issue. In the course of the trial of the case the defendants took bills of exceptions numbered respectively from one to twenty-one, which were signed, sealed and saved to the defendants. The first nineteen of which were exceptions to the rulings of the court in relation to the admission of testimony claimed to be improperly admitted.
Exception No. 1: Y. C. Bobo, a witness introduced by plaintiff, was asked, "Please state whether you allowed any assistance that you rendered at the breakdowns or anything of the kind to interfere with your duties as measurer, tallyer and grader of lumber sawed by Mr. Yale's mill on the William Miller Two Mile Creek Farm?", which he was permitted to answer over the objection of the defendants. He answered, "I did not." The witness had been employed by plaintiff in the capacity indicated by the question, and had at times, as it appears from the evidence assisted about the mill in some other matters and the object of the question was to show that his duties as measurer and grader were not interfered with by such assistance rendered by him in other matters. The defendants do not rely upon this exception in their brief and I see no valid objection to the testimony. Plaintiff had a right to have the question answered, if there was not sufficient work in the line to employ witness' whole time he could properly be engaged otherwise when not so employed.
Bill of Exception No. 2 relates to questions asked on crossexamination by plaintiff of the witness, G. W. Suiter, and which questions were permitted to be asked and answered over the objection of the defendants, relating to the timber that was cut to be sawed and shipped. This exception likewise is not relied upon by defendants as it is not mentioned in their brief.
Bills of Exceptions Nos. 3 and 4 relate to testimony referring to a contract in writing between Graham & Blessing on the one side and Suiter & Dunbar on the other, dated March 2, 1900, in relation to the hauling of the timber by Graham & Blessing for Suiter & Dunbar, on the William Miller Two Mile Creek Farm, to the mill of plaintiff. One of the objections to the introduction of this testimony set out in said bills of exceptions was, that it was thereby attempted to prove the contents and provisions of a contract in writing by oral testimony, using secondary evidence without laying the grounds therefor, the plaintiff being in possession of the primary evidence. 1 Green'l on Ev. sec. 82; 7 A. and E. E. 85, (1st. Ed.); 11 Id. 535, (2nd Ed.) The contract itself was the best evidence of its contents and it was improper to hear the testimony of witnesses as to what its contents were, and especially giving a construction of it. When improper testimony has been admitted over the objection of the opposite party, the presumption is that he was prejudiced by the admission of such testimony, unless it affirmatively appears that in fact he was not prejudiced by it. Hall v. Lyons, 29 W. Va. 410; Taylor v. Railroad Co., 33 W. Va. 39; Dent v. Pickens, 34 W. Va. 240, (syl. pt. 4:) "Where illegal evidence is admitted against the objection of a party it will be cause for setting aside the verdict, unless it clearly appear that the objecting party was not prejudiced thereby." The testimony referred to in said bills of exceptions Nos. 3 and 4 should not have been introduced.
It is proper at this point to consider Bill of Exception No. 19, which goes to the introduction in evidence by the plaintiff of the contract of March 2, 1900, between Suiter...
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