Williamson v. Levine

• Decision Date: 13 October 1914
• Docket Number: 2320.
• Citation: 83 S.E. 281,75 W.Va. 143
• Parties: WILLIAMSON v. LEVINE.
• Court: West Virginia Supreme Court

83 S.E. 281

75 W.Va. 143

WILLIAMSON v. LEVINE.

No. 2320.

Supreme Court of Appeals of West Virginia.

October 13, 1914

Submitted September 29, 1914.

Syllabus by the Court.

Findings of a trial court as to facts, upon issues submitted to it in lieu of a jury, upon a commissioner's report and the evidence returned therewith, will be set aside, if unsustained by evidence or contrary to the decided weight and preponderance thereof, notwithstanding their agreement with the findings of the commissioner.

But, if the evidence in such case is oral and conflicting and discloses nothing of decisive character, such findings will not be disturbed.

Error to Circuit Court, Mingo County.

Action of assumpsit by Robert L. Williamson against Jacob Levine. Judgment for plaintiff, and defendant brings error. Reversed and rendered.

Sheppard Goodykoontz & Scherr, of Williamson, for plaintiff in error.

Stokes & Bronson, of Williamson, for defendant in error.

POFFENBARGER J.

In this action of assumpsit for money alleged to be due upon a building contract, the defendant set up a number of counterclaims by way of recoupment and set-off some of which were allowed and others disallowed. Certain demands of the plaintiff, to which the defendant objected were also allowed. The trial court referred the case to a commissioner for investigation and report, and, by agreement of counsel, a jury trial was dispensed with, and the case submitted to the court upon the commissioner's report and the evidence returned therewith. The court adopted the findings of the commissioner and rendered a judgment for the plaintiff in the sum of $881.42.

The plaintiff in error complains of three items found against him, one of $266.75, the cost of a plate glass front, with the expense of drayage and crating, another of $58.81 for steel beams alleged to have been put into the building as extras, and another for $60.45, the value of 465 cement or terra cotta blocks, which the plaintiff claims to have furnished for a part thereof not included in his contract. He also complains of the disallowance of two of his counterclaims, one of $45, for one-half of the premiums paid on policies of insurance on the building while in course of construction, another of $127.50 for loss of rent, alleged to have been occasioned by the refusal of the plaintiff to deliver the keys to the building, after completion, in consequence of which the prospective tenant of a portion thereof could not be admitted. Cross-assignments of error by the plaintiff are founded upon the disallowance of two items for commissions, amounting, respectively, to $88.08, $77.33, and a claim of $240 for part of the compensation of a timekeeper. He further complains of two findings in favor of the defendant; one as to an item of $118.56 for deficiency in materials used in the roof, and the other of $24.50 for failure to bridge the roof joists. The glass for which the disputed claim is made was delivered upon the premises of the defendant, but rejected by him because, in his opinion, it was not of the quality or kind called for by the plans and specifications, although the plaintiff claims he ordered it in accordance therewith. It was prepared for union at the corners by what are called "Colsom Bars." The defendant wanted beveled glass united at the corners by cleats or clasps. The plaintiff says the defendant did not object to the glass, until he understood how it was to look when put up. As to what the plans and specifications called for, there is some confusion, resulting from the preparation of two sets of plans, one for a three-story building, which was abandoned, and the other for a two-story building, the one actually erected, with a third story put on without plans and specifications. The plans for the two-story building, except as to the addition of the third story, seem to have been generally adhered to, but there is evidence tending to show departure from them and consultation of the plans for the three-story building, during the process of erection. However, the departures were made by the direction of the owner in each case, and there is no evidence of right in the plaintiff to exercise any discretion in this respect. Hence the controversy as to the glass involves inquiry as to what was required or prescribed by the plans. Neither set provided for "Colsom Bars" glass. The three-story building plans called for round corners or beveled glass, and the detail plans of the two-story building prescribed mitered glass. The plaintiff says the front elevation plan indicated the use of "Colsom Bars," and that he sent a copy of it with the...