Wiggin v. Marsh Lumber Co, (No. 3183.)

CourtSupreme Court of West Virginia
Writing for the CourtPOFFENBARGER
Citation91 S.E. 532
PartiesWIGGIN v. MARSH LUMBER CO. et al.
Decision Date20 February 1917
Docket Number(No. 3183.)

91 S.E. 532
(79 W.Va. 651)

WIGGIN
v.
MARSH LUMBER CO. et al.

(No. 3183.)

Supreme Court of Appeals of West Virginia.

Feb. 20, 1917.


(Syllabus by the Court.)

Error to Circuit Court, Raleigh County.

Action by H. D. Wiggin against the Marsh Lumber Company and others. Judgment for defendants, and plaintiff brings error. Af-' firmed.

File & File, of Beckley, for plaintiff in error.

Herbert Stansbury and McGinnis & Hatcher, all of Beckley, for defendants in error.

POFFENBARGER, J. The elaborate recital of facts of this case found in the opinion setting forth the grounds of the disposition of a former writ of error in it (87 S. E. 194) renders a restatement thereof unnecessary. The evidence adduced on the new trial awarded may differ, in some respects, from that upon which the former verdict rested, but the matter in controversy is the same. Some grounds of recoupment previously relied upon were not asserted in the second trial, but some additional items of set-off, wrongful deductions of freight, were claimed. As on the former trial, full defense was made under the general issue, and the jury found for the defendants.

As it sometimes happens, the terms of the contract were more closely observed and ad-

[91 S.E. 533]

hered to on the second trial than on the first, and two provisions thereof, not specifically and clearly invoked on the former trial, became the basis of the court's instructions on the second. These were right of election as to the place of loading the lumber, reserved to the plaintiff, and the inhibition of the defendants from delivery otherwise than as ordered by the plaintiff. The first was that delivery should be made "f. o. b. cars at Surveyor, W. Va., on the C. & O. Railway or the Virginian Railway at the election of the said Wiggin, " and the other, that "the remainder of said lumber" (all but the 50, 000 feet to be furnished in October, 190S), should be "delivered when ordered and directed by the said Wiggin and not otherwise." On the former trial, the defendants sought only one very short instruction, telling the jury to find for the defendants, if they believed all the lumber ordered to be placed on the cars, by the plaintiff, had been "delivered f. o. b. cars Surveyor." The court gave it. In it, there is no express reference to these controlling provisions. For the plaintiff, the court gave six instructions on that trial, and refused two others requested. Two of those given related to claims of recoupment, not now involved. One of them absolved the plaintiff from duty to prove actual damages. Two of them left it to the jury to say whether the defendants had failed to deliver lumber as ordered by the plaintiff, but did not define an order for lumber as contemplated by the contract. Another told them they might consider the correspondence upon the inquiries submitted to them. One of the two refused would have placed upon the defendants the duty of furnishing the cars for carriage, and the other would have denied the defendants' right to set up a breach of the contract by the plaintiff, if they had treated it as continuing.

On the second trial, the defendants sought and obtained four instructions, the first of which told the jury the plaintiff could not recover liquidated damages, because of nondelivery of the 50, 000 feet of lumber in October, 1908, as provided in the contract, if they believed from the evidence he had agreed to modify its terms as to that lumber; the second, that, if they believed the defendants hauled 150, 000 feet of poplar lumber to Surveyor, in the summer of 1909, and permitted the plaintiff's inspector to inspect it and take from it such lumber as he desired, they should find he had waived their failure to haul it to the railroad in January, 1909, in compliance with his request; the third, that the statement in the letter of January 4, 1909, that the defendants might haul the oak lumber if they wanted to, although the plaintiff did not care particularly about it, was a mere permission to haul the oak, but not such an order as was contemplated by the contract of July 11, 1908, as to that lumber; and the fourth, that, although they might believe the plaintiff gave the defendants any orders permissible under the contract of July 11, 1908, before the institution of the action, with which they failed to comply, yet if they believed from the evidence that it was agreed between the parties, after the institution of the action, that proceedings should be stayed and the contract completed, it then became the duty of each party to go on according to the terms of the agreement of July 11, 1908, and of the plaintiff to give orders as provided therein; and, if they should believe there was no proof that the plaintiff gave such orders, and the defendants did not have them and could not complete the contract for want thereof, they should find for the defendants, or rather that the plaintiff was not entitled to liquidated damages. The court refused to honor the request of the plaintiff for three instructions, two of which, Nos. 1 and 6, treated the contract as imposing absolute duty upon the defendants to deliver the lumber within one year and the extensions of time assented to by the plaintiff, and the other, No. 3, ignored the defendants' evidence, tending to prove the delivery of 150, 000 feet of poplar lumber at the railway siding and at the end of the tramway, and also treated the contract as absolute and unconditional. It also refused to give plaintiff's instructions Nos. 2, 4, and 5, as drawn, but modified them and gave them as modified. One of these, No. 4, as requested and as given, directed attention to the provisions of the contract, respecting the character of the orders to be given, and one of them, No. 2, advised the jury that the Marsh Lumber Company had no right to demand of Wiggin that he receive at one time the 150, 000 feet of lumber, the defendants claimed to have hauled to the siding and the end of the tramway. All of them, as requested, absolved the plaintiff from estoppel or denial of right, by his waiver of conditions. In this respect, the court amended them. At his instance, the court gave three other instructions, without amendment, Nos. 7, 8, and 9. The first of these advised the jury that the defendants, after breach of the contract by the plaintiff, could not set up such breach, if they had waived it; the second, that the plaintiff was not required to ship lumber furnished him at Surveyor, as soon as it was delivered there, but that he had a reasonable time after delivery in which to procure cars to load it; and the third, that the contract sued on was a continuing one until July 16, 1910, and that the plaintiff's right to recover could not be defeated upon the ground of his failure to perform the contract, prior to that date, if the defendants did not furnish him any lumber under the contract, after that date.

Differences of opinion between the trial court and the attorneys for the plaintiff, as to the effect of the decision of this court upon the former writ of error, were the inducing causes of the adverse rulings complained of.

[91 S.E. 534]

Although the former verdict was set aside, careful examination and analysis of the...

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7 practice notes
  • State v. Hale, No. 9307
    • United States
    • Montana United States State Supreme Court of Montana
    • 19 November 1955
    ...41 Am.Rep. 119; Pennington v. Gillaspie, 66 W.Va. 643, 650, 652, 66 S.E. 1009; and see Wiggin v. Marsh Lumber Co., 79 W.Va. 651, 656, 657, 91 S.E. 532. In other words, the law of the case for the third trial is announced now on this the second Page 236 appeal so far as our present opinion c......
  • Hendricks v. Monongahela West Penn Pub. Serv. Co, No. 7855.
    • United States
    • Supreme Court of West Virginia
    • 5 June 1934
    ...283, 284. The West Virginia court has not heretofore regarded the rule with such diffidence. In Wiggin v. Lbr. Co., 79 W. Va. 651, 656, 91 S. E. 532, and in Pennington v. Gillaspie, 66 W. Va. 643, 66 S. E. 1009, this court "corrected" and disregarded former rulings in the very same cases. I......
  • Hendricks v. Monongahela West Penn Pub. Serv. Co., (No. 7855)
    • United States
    • Supreme Court of West Virginia
    • 5 June 1934
    ...West Virginia court has not heretofore regarded the rule with such diffidence. In Wiggin v. Lbr. Co., 79 [115 W.Va. 219] W. Va. 651, 656, 91 S. E. 532, and in Pennington v. Gillaspie, 66 W. Va. 643, 66 S. E. 1009, this court "corrected" and disregarded former rulings in the very same cases.......
  • Highland v. Davis, No. 8927.
    • United States
    • West Virginia Supreme Court
    • 24 October 1939
    ...defined limitations, this court may alter or depart from its prior decision in the same case. Wiggin v. Marsh Lumber Co., 79 W.Va. 651, 91 S. E. 532; Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 1009. But the "law of the case" will not be departed from except where the court has become co......
  • Request a trial to view additional results
7 cases
  • State v. Hale, No. 9307
    • United States
    • Montana United States State Supreme Court of Montana
    • 19 November 1955
    ...41 Am.Rep. 119; Pennington v. Gillaspie, 66 W.Va. 643, 650, 652, 66 S.E. 1009; and see Wiggin v. Marsh Lumber Co., 79 W.Va. 651, 656, 657, 91 S.E. 532. In other words, the law of the case for the third trial is announced now on this the second Page 236 appeal so far as our present opinion c......
  • Hendricks v. Monongahela West Penn Pub. Serv. Co, No. 7855.
    • United States
    • Supreme Court of West Virginia
    • 5 June 1934
    ...283, 284. The West Virginia court has not heretofore regarded the rule with such diffidence. In Wiggin v. Lbr. Co., 79 W. Va. 651, 656, 91 S. E. 532, and in Pennington v. Gillaspie, 66 W. Va. 643, 66 S. E. 1009, this court "corrected" and disregarded former rulings in the very sam......
  • Hendricks v. Monongahela West Penn Pub. Serv. Co., (No. 7855)
    • United States
    • Supreme Court of West Virginia
    • 5 June 1934
    ...West Virginia court has not heretofore regarded the rule with such diffidence. In Wiggin v. Lbr. Co., 79 [115 W.Va. 219] W. Va. 651, 656, 91 S. E. 532, and in Pennington v. Gillaspie, 66 W. Va. 643, 66 S. E. 1009, this court "corrected" and disregarded former rulings in the very s......
  • Highland v. Davis, No. 8927.
    • United States
    • West Virginia Supreme Court
    • 24 October 1939
    ...defined limitations, this court may alter or depart from its prior decision in the same case. Wiggin v. Marsh Lumber Co., 79 W.Va. 651, 91 S. E. 532; Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 1009. But the "law of the case" will not be departed from except where the court has......
  • Request a trial to view additional results

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