Wingo Mining Co. v. Flanagan Coal. Sales Co., No. 4669.

• Court: Supreme Court of West Virginia
• Writing for the Court: LIVELY, J.
• Citation: 93 W.Va. 76
• Decision Date: 06 February 1923
• Docket Number: No. 4669.
• Parties: Wingo Mining Company v. Flanagan Coal. Sales Co.

93 W.Va. 76

Wingo Mining Company
v.
Flanagan Coal. Sales Co.

No. 4669.

Supreme Court of Appeals of West Virginia.

Submitted January 30, 1923.
Decided February 6, 1923.

[93 W.Va. 76]

1. Appeal and Error Finding of Jury Generally Conclusive

of Disputed Facts.

Where the issue in an action on an account is whether there has heen 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, (p. 80).

2. Same Mere Preponderance in Number of Witnesses in De-termination of Disputed Facts Will not Control.

The weight of evidence and the credibility of witnesses is peculiarly within the province of the jury. Mere pre-

[93 W.Va. 77]

ponderance in the number of witnesses in the determination of a disputed fact will not control, (p. 80). 3. Same Where Witness Fully Answers in Another Form Questions to Which Objection Has Been Sustained, Error, if Any, Cured.

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. (p. 80).

(McGinnis, Judge, absent). (Litz, Judge, absent).

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, for plaintiff in error.

J. N. Harman, Jr., for defendant in error.

Lively, Judge:

The Flanagan Coal Sales Company prosecutes this writ of error from the judgment of the circuit court of McDowell County, pronounced on the first 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%. 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 car loads 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, plain-

[93 W.Va. 78]

tiff 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% commission was subtracted, leaving a net sum of $1283, which defendant then paid to him by...