Williams & Davisson Co v. Ferguson Contracting Co

• Citation: 60 W.Va. 428,55 S.E. 1011
• Court: Supreme Court of West Virginia
• Decision Date: 30 October 1906
• Parties: WILLIAMS & DAVISSON CO. v. FERGUSON CONTRACTING CO.

55 S.E. 1011

60 W.Va. 428

WILLIAMS & DAVISSON CO.

v.FERGUSON CONTRACTING CO.

Supreme Court of Appeals of West Virginia.

Oct. 30, 1906.

Rehearing Denied Jan. 10, 1907.

1. Appeal—Review—Bill of Exceptions.

Where an exception was saved to the ruling of the court, in a general bill of exceptions certifying all the evidence, admitting evidence claimed to be inadmissible, but is not made the Bubject of a special bill of exceptions, being saved in that way and insisted upon in his brief by the objecting party, it is proper to be reviewed and considered by the appellate court.

2. Same—Objections Waived.

Where, after the plaintiff has introduced all his evidence, a motion of the defendant to exclude from the jury all the plaintiff's evidence has been overruled, and defendant proceeds to introduce his evidence in defense, the appellate court will disregard said motion as having been waived by the defendant, notwithstanding the exception to such ruling is made the subject of a separate bill of exceptions, and will not reverse the judgment for that cause.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3614.]

(Syllabus by the Court)

Error to Circuit Court, Braxton County.

Action by the Williams & Davisson Company against the Ferguson Contracting Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Haymond & Fox, for plaintiff in error.

Hines & Kelly and Hall Bros., for defendant In error.

McWHORTER, P. This was an action of assumpsit, brought In the circuit court of Braxton county by the Williams & Davisson Company, a corporation, against the Fergu son Contracting Company, a corporation, for the price of a consignment of powder and dynamite alleged to have been furnished by plaintiff to defendant, of the value of $1,100. The defendant entered its plea of non assumpsit, to which plaintiff replied generally. A jury was impaneled and sworn to try the Issue, and, having heard the evidence and arguments of counsel, returned a verdict In favor of plaintiff for $1,145.47 damages. The defendant moved the court to set aside the verdict of the jury, because it was contrary to the law and the evidence, which motion the court overruled and entered judgment upon said verdict. The defendant was a contractor for the construction of certain sections of the Coal & Coke Railway and subcontracted to Wm. M. Powell & Co. a certain part of its said work. In the prosecution of the work contracted to be done by said Powell & Co. they purchased from plaintiff the powder and dynamite sued for. The dynamite was shipped by plaintiff about February 27, 1904, to Cogar Station, in. Braxton county, consigned to the shipper, to be used by Powell & Co. in their work and to be paid for as used. Powell & Co. failed to complete their work, and under the provisions of their contract with the defendant company the latter took charge of the work and used the material on hand in the construction of the work, and the action was to recover the value of the dynamite from the defendant, claiming that the sale to Powell & Co. of the dynamite was not completed by delivery, and, the same having been taken and used by the defendant, it became liable, either by express or implied promise to pay for it. In the course of the trial the defendant took six several bills of exceptions to certain rulings of the court and defendant procured from this court a writ of error and supersedeas.

The first bill of exceptions Is as to the admission of the evidence of Charles Wyckoff to prove the declarations of H. E. Manderville, a member of the firm of Wm. M. fowell & Co. The witness was testifying In relation to a conversation he had with Manderville In relation to the claim of plaintiff for the dynamite, when he was asked by plaintiff's counsel, "What did Mr. Manderville say?" to which question defendant objected, which objection was overruled, and the witness answered, "Mr. Manderville told me that he wanted to get the matter adjusted, when I talked to him about the matter, and then he called me over the phone, and' said to charge it to the Ferguson Contracting Company, H. E. Manderville. Superintendent, and he also told me in person that he was superintendent of the works over there." To which action of the court In overruling its objection to said question and permitting said witness to answer as aforesaid defendant excepted, and then moved the court to exclude from the Jury the said statement of said Wyckoff, when the court said, "I think.

I will exclude what he said about being superintendent of that particular work, " but refused to exclude the statement, There is a similar exception taken to the ruling of the court in overruling the objection made by the defendant to the testimony of Robert Pollard, where he is asked: "What if anything, did Mr. Manderville say to you about this dynamite having been used on the work after he had taken charge for Ferguson? A. He said that Ferguson had taken charge of the work, and said he was going to complete it, and he was superintendent, and said he took charge of it in a deed of trust; and I made a remark about what they had secured, and about some horses and carts, and several things, and he said they had taken charge of a car of dynamite, which Powell had originally bought from the Williams & Davisson people, and I asked him where it was, and he said It was In the magazine, and I asked him if he was going to ship it back, and he said, 'No, ' that arrangements had been made for Ferguson to use it." An exception was saved to this ruling in the general bill of exceptions No. 6, which certifies all the evidence, but is not made the subject of a special bill of exceptions; but, being saved in that way and insisted upon by the plaintiff in error in his brief, it is proper to be reviewed and considered by the appellate court. See Snyder v. Railway Co., 11 W. Va. 15, 32; McDodrill v. Lumber Co., 40 W. Va. 564, 570, 21 S. El 878. The testimony so excepted to related to the agency of Manderville as manager in charge of the work for Ferguson Company and his authority in the premises. The conversation narrated by witness Pollard, he states, was after Walker, the chief engineer and general manager of defendant company, had told him that Manderville was superintendent for defendant company, and the testimony of witness Williams hereinafter set out, where he gives a conversation between J. B. Walker, chief engineer and manager of defendant company, Mr. Manderville, and himself, and which testimony is not objected or excepted to, touching such agency of Manderville, was sufficient to render the evidence admissible.

Bill of exceptions No. 2 Is to the overruling by the court of the motion of the defendant to exclude from the jury all the plaintiff's evidence, after the plaintiff had Introduced all its evidence in chief, and before the defendant had introduced any evidence. After the overruling of defendant's motion to exclude plaintiff's evidence, the defendant proceeded to introduce Its evidence in the case. It has been frequently held by this court that when a motion has been made to exclude the plaintiff's evidence for insufficiency, and the motion overruled, the defendant, by proceeding with its defense and introducing Its evidence, shall be taken to have waived its exception to the ruling of the court in refusing to exclude the evidence. Trump v. Tidewater Co., 46 W. Va. 238, 32 S. E Core v. Railroad Co., 38 W. Va. 456, 18 S. E. 596; Billingsley v. Stutler, 52 W. Va. 92, 43 S. E. 96.

Bill of exceptions No. 3 goes to the admission of the testimony of Charles Wyckoff over the objection of the defendant, where he Is permitted to testify that he had sold goods to Cole, one of the superintendents of the defendant company, without a requisition from Mr. Walker, chief engineer, or the Burnville office. It Is claimed that this evidence was admissible to show the manner of doing business by the defendant company, and for the purpose of contradicting the witness Walker, chief engineer, who had stated that the defendant's superintendents were not authorized to buy supplies without a requisition from the office at Bumsville. For the purpose Indicated the testimony was admissible.

Bill of exceptions No. 4 goes to the giving of instructions, on behalf of the plaintiff, Nos. 1, 2, 3, 5, and 6; and bill of exceptions No. 5, to the ruling of the court in refusing to give on behalf of the defendant instruction No. 2. Plaintiff's instructions, given by the court, complained of, are as follows: "(1) The court instructs the jury that if they believe from the evidence that the dynamite in question was consigned to the Williams & Davisson Company, and that the title to the said dynamite remained in the Williams & Davisson Company until received or accepted by Wm. M. Powell & Co., and if they further believe from the evidence that said dynamite was not received or accepted by Wm. M. Powell & Co., but was taken and used by the Ferguson Contracting Company, then they should find for the plaintiff the value of said dynamite. (2) The court instructs the jury that If they believe from the evidence that the dynamite In controversy was consigned to the Williams & Davisson Company, with the understanding that Wm. M. Powell & Co. were to have It, If they further believe from the evidence that, before said dynamite was received or accepted by the said Powell & Co., the Ferguson Contracting Company had taken charge of the work of the said Wm. M. Powell & Co., and that the said dynamite was not received or used by the said Wm. M. Powell & Co., then, if they further believe from the evidence that said dynamite was taken and used by the said Ferguson Contracting Company, they should find for the plaintiff the value of said dynamite as shown by the evidence. (3) The court Instructs the jury that even if they believe from the evidence that the said Manderville was not authorized to purchase dynamite for the use of the said Ferguson Contracting...