Wandling v. Straw & Morton.

• Decision Date: 18 April 1885
• Citation: 25 W.Va. 692
• Court: West Virginia Supreme Court
• Parties: Wandling v. Straw & Morton.

25 W.Va. 692

Wandling

v.Straw & Morton.

Supreme Court of Appeals of West Virginia.

Submitted June 23, 1884.

Decided April 18, 1885.

The validity of a judgment of a court of record oai) not he collaterally attacked, on the ground that the eourt had no jurisdiction, unless the want of jurisdiction appears upon the face of the record, (p. 704.)

If it appears by the record that an attorney appeared for the defendant in a court of general jurisdiction, such appearance gives the court jurisdiction of the person of the defendant; and if the attorney so appeared without his authority, thai fact can not be shown as a defence at law in any action or proceeding upon the judgment, where the same may properly be used as evidence of the right thereby established, (p. 703.)

In any action or proceeding at law upon a judgment of a court of general jurisdiction between tie1 parties thereto, in which such judgment may properly be used as evidence of the right thereby established, the defendant as a matter of defence at law can not show, that the court did not acquire jurisdiction of the defendant, except by an inspection of the record, (p. 704)

A judgment upon the merits of the case is a bar or estoppel against a prosecution of a second action upon the sane demand, and is a finality to the claim or demand in controversy and concludes parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim, but also any other admissible matter which might have been used for that purpose; such demand or claim having passed into judgment can not again be brought into litigation between the parties in proceedings at law upon any ground whatever, (p! 707)

These principles apply with equal force as well to judgments of the inferior courts of record of the United States rendered in this State between parties subject to their jurisdiction, as to judgments of the circuit courts of this State, (p 705.)

Where all the evidence introduced by the plaintiff on the trial of his action, is clearly insufficient to sustain a verdict in his favor, should such verdict be rendered, it is error in the court to overrule the defendant's motion to exclude such evidence from the jury, if made before any evidence be offered on behalf of the defendant, (p. 708)

In a case where all the evidence introduced on the trial is clearly insufficient to warrant a verdict in favor of the plaintiff, and the jury nevertheless finds a verdict in favor of the plaintiff, it will be error to overrule the motion of the defendant to set the same aside and grant him a new trial, (p. 708.)

Woods, Judge, furnishes the following statement of the case:

On September 8, 1870, flames W. Wandling and Straw & Morton entered into the following agreement: "Agreement made the eight (8) day of September, 18, by and between Straw & Morton, of Pittsburgh, of the first part, and James W. Wandling, of the second part, witnesseth:

" That Straw & Morton hereby agree to employ the said party of the second part, and the party of the second part agrees to enter into the employment of said Straw & Morton for the period of one year for the following purpose and upon the following terms and conditions, to-wit: The party of the second part agrees to devote his whole time industriously in canvassing and obtaining purchasers for Singer's sewing machines, of which the said Straw & Morton have the agency or right of sale within western Pennsylvania, eastern Ohio and West Virginia, at the regular retail prices, to be fixed from time to time by said Straw & Morton; all such sales shall be made for cash on delivery ot the machines sold or lor negotiable paper at short time. When sales shall be made on time, it is agreed, in order to insure care and diligence on the part of the employee, that all such notes shall be made by the purchaser to the order of said party of the first Dart and endorsed by the party of the second part and immediately delivered to Straw & Morton, and the said employee shall be liable in case of non-payment of such note or notes at maturity for the amount thereof. The party of the second part is to be allowed as full compensation for all his services and expenses in the said employment and business as follows, viz: Twenty per cent, from the retail prices of machines, as per bills ot consignment; the party of the first part agree to furnish horse, wagon and harness. The said Straw & Morton shall not be liable or responsible tor any expenses of their said employee, nor shall said employee have any authority to make sales except for cash or for notes ot responsible persons, taken upon delivery of the machines and immediately endorsed to said Straw & Morton as aforesaid. And it is expressly agreed that all machines sold or agreed to be sold as aforesaid shall be and remain the absolute property of said Straw & Morton until paid tor by cash or negotiable note in the manner aforesaid. All sewing machines, moneys and notes received or taken into possession by the said party of the second part by virtue of the employment and business aforesaid shall be and remain the absolute property of said Straw & Morton, and the said employe shall be deemed and held as bailee thereof for the purpose and business aforesaid, and all moneys and notes received or taken by said party of the second part shall be forthwith paid and delivered to Straw & Morton. The said party of the second part shall have no power to make contracts or to do any other matter or thing beyond the authority expressly granted by this agreement. Should the party of the second part quit the business before or at the expiration of this article, he shall dispose of all machines or other goods belonging to Straw & Morton in the manner specified above and make return of the same.

" Witness our hands and seals.

"Straw & Morton, [seal.] "Jambs W. Wandling, [seal.]"

On the same day Wandling, with Burr Triplett, as his security, executed to Straw & Morton a bond in these words:

" Know all men by these presents, that we James W. Wandling,-Pleasants county, West Virginia, and Burr Triplett, of Pleasants county, West Virginia, are held and firmly bound unto Straw & Morton, of Pittsburgh, Alleghany county, Pennsylvania, in the sum of five hundred dollars lawful money of the United States, to be paid to the said Straw & Morton, their heirs or assigns, for which payment, well and truly to be made, we bind ourselves, jointly and severally, and the heirs, executors and administrators of us, and each of us, firmly. Sealed with our seals and dated this eight day of September, A. D., 1870.

" The condition of this obligation is such, that if the above bounden James W. Wandling and Burr Triplett shall well and truly keep and perform in all respects, according to its true intent and meaning, the contract on which this obliga- tion is endorsed, executed between him, the said James W. Wandling, and said Straw & Morton, dated this eight day of September, 1870, then this obligation to be null and void,

otherwise to remain in full force and virtue." James W. Wandling, [seal.]: Burr Triplett. [seal.]" Witness: J. II. Page."

In pursuance of this contract Straw & Morton from time to time, while Wandling continued in their employment, which was a little more than a year, furnished to him fifteen sewing machines tor sale. On August 5, 1876, Straw & Morton brought their action ot debt against Wandling and Burr Triplett on said bond, in the district court of the United States for the district of West Virginia at Wheeling to recover the amount alleged to be due to them from Wandling under the terms of said agreement.

Their declaration after fully setting out the said bond and its condition together with the substance of the said agreement, averred that Straw & Morton in pursuance thereof furnished Wandling at different times between the 8th day of September, 1870, and the institution of their suit, with fifty Singer Sewing Machines to be by him sold and disposed of according to the terms of said agreement, of the value of $4,000.00, and allowed him for his services and expenses the compensation mentioned in said agreement, and furnished him with a horse, wagon and harness in pursuance of the terms thereof, and specifically alleging the performance by them of everything, on their part to be done and performed, and the non-performance on the part of W^andling of the matters and things by him to be performed, and particularly assigning three breaches of the condition of said bond, in substance as follows: First. That Wandling sold seven of said machines ot the value of $560.00, and in part payment thereof took and forwarded to them six notes on certain parties named, amounting in the aggregate to $500.00, and that when said notes became payable, the several makers thereof tailed and refused to pay, and never paid the same, nor did said Wandling, as by the terms of said agreement he was bound to do. Second, that Wandling sold ten of said machines and converted the proceeds of the sale thereof to his own use, amounting to the sum of $600.00, and has failed and refused to pay the same to them. Third, that ten of said machines of the value of $800.00, Wandling kept, and converted to his own use, and has refused to return them or to pay for them; and then concludes in the usual iorm, demanding the penalty of the bond $500.00, and $500.00 damages. The summons in this case was executed upon the defendant Triplett, and the conditional judgment against him taken at the August rules and confirmed, and a writ of enquiry awarded at the September rules, 1876, but it does not appear that the summons was ever served on Wandling. On September 11, 1877, at a term of said district court being held at Wheeling, the following order was entered in said cause: "This day came the parties by their attorneys, and the said defendants by their* attorney here relinquishing their former pica, acknowledge the plaintiffs action; whereupon came...