Wingo Min. Co. v. Flanagan Coal Sales Co.
| Citation | 115 S.E. 839,93 W.Va. 76 |
| Decision Date | 06 February 1923 |
| Docket Number | 4669. |
| Parties | WINGO MINING CO. v. FLANAGAN COAL SALES CO. |
| Court | West Virginia Supreme Court |
Submitted January 30, 1923.
Syllabus by the Court.
Where the issue in an action on an account is whether there has been a former settlement between the parties in which all matters in difference were included except the item sued on and there is conflicting evidence, the finding of a jury thereon is generally conclusive of the disputed fact.
The weight of evidence and the credibility of witnesses is peculiarly within the province of the jury. Mere pre ponderance in the number of witnesses in the determination of a disputed fact will not control.
Where an objection has been sustained to a question propounded a witness, but subsequently the witness fully answers the question propounded in another form, error, if any, has been cured.
Error to Circuit Court, McDowell County.
Action by the Wingo Mining Company against the Flanagan Coal Sales Company. From a judgment of the circuit court for plaintiff on appeal from a justice of the peace, defendant brings error. Affirmed.
E. C Marshall, of Welch, for plaintiff in error.
J. N Harman, Jr., of Welch, for defendant in error.
The Flanagan Coal Sales Company prosecutes this writ of error from the judgment of the circuit court of McDowell county, pronounced on the 1st day of April, 1922, based on the verdict of the jury for the sum of $219.51 in an action appealed from the court of a justice of the peace.
It appears that T. C. Wingo, trading as Wingo Mining Company, was engaged in mining coal from lands leased by him, and entered into a contract with Flanagan Coal Sales Company by which the latter sold the coal for the former on a commission basis of 8 per cent. The defendant was engaged in buying and selling coal on its own account and in selling coal of other persons on commission. In the fall of 1920 several carloads of coal were loaded by plaintiff and placed at the disposal of defendant under the contract, and were consigned by the coal sales company to purchasers at Chicago and elsewhere in the West. Prior to the 10th of January, 1921, plaintiff addressed several letters to defendant, at its office in Welch, asking for payment for the coal, and, not receiving satisfactory response thereto, visited the office of defendant on said date for the purpose of obtaining a settlement. He says that he had a full and complete settlement with defendant on that day, with the exception of the price of one car of coal shipped on December 18th and designated "C., B. & Q. Car No. 172319," on which defendant claimed it had no report and for which no settlement was made. He said that he told defendant it was necessary for him to have money for the coal mined and shipped, because in the following month his royalties were due to his lessor and were based upon the prices for which the coal was sold. The royalty was paid on a sliding scale, depending upon the price which he received. At that time defendant's bookkeeper furnished a statement of the number of cars shipped, the number of tons contained in each, and the aggregate prices for which they were sold to the purchasers, from which the 8 per cent. commission was subtracted, leaving a net sum of $1,283, which defendant then paid to him by check. Afterwards, in May, 1921, he received a report on the C., B. & Q. car to the effect that it contained 56 65/100 tons of coal, which sold for $4 per ton, amounting to $238.60, from which the commission of 8 per cent. was to be subtracted, leaving $219.51, for which he instituted the suit before a justice of the peace. The defendant claims that no settlement was made on the 10th of January, 1921; that at that time it had not received reports on the prices which the coal brought, but only had the weights of the cars, and estimated what the coal would bring, and the statement furnished to plaintiff on that date, which gave the prices, was only an estimate, and that it was understood by all parties interested that it was not a complete settlement; that inasmuch as plaintiff was insistent about receiving money with which to meet his obligations, defendant accommodated him to the extent of the check given. Defendant filed as a set-off to plaintiff's claim a statement of the sums which the various cars brought, together with the items for demurrage and reconsignment charges, which, with the 8 per cent. commission charged, overbalanced plaintiff's account to the extent of $55.01, for which it sought judgment.
Three witnesses only were examined, the plaintiff, Henchey, manager for defendant, and Henritz, its secretary. The statement furnished by defendant to plaintiff on January 10th, showing the number of cars, weights and prices received, with a notation thereon that no report had...
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