Wingo Mining Co. v. Flanagan Coal. Sales Co.

Decision Date06 February 1923
Docket NumberNo. 4669.,4669.
PartiesWingo Mining Company v. Flanagan Coal. Sales Co.
CourtWest Virginia Supreme Court

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...

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