Winkler v. Chesapeake & O. R. Co.

• Decision Date: 27 April 1878
• Citation: 12 W.Va. 699
• Parties: WINKLER v. CHESAPEAKE & OHIO R. R. CO.
• Court: West Virginia Supreme Court

12 W.Va. 699

WINKLER v. CHESAPEAKE & OHIO R. R. CO.

Supreme Court of West Virginia.

April 27, 1878

1. The promise of one person to pay the debt of another, though in writing, must be founded on a consideration to make it binding; and if there is an attempt made to declare upon it specially, the count, or counts, must set forth the consideration.

2. A special count, that shows a consideration for a promise of one to guarantee the debt of another, and does not allege that the other has not paid the debt, is fatally defective.

3. Where a writing purporting to be signed by an agent, is offered in evidence and objected to, it is error to admit it until the agency, and the agent's authority to sign it is proved.

4. If a paper offered in evidence is unobjectionable on its face, and the only objection is as to the time it should be introduced its relevancy not then being apparent, it is not error to admit it, if other evidence is subsequently introduced showing its relevancy. The court will not control a party in the mere order of introducing his evidence.

5. It is error to instruct the jury hypothetically, upon a state of facts where there is no evidence in the case tending to prove such facts.

6. It is error to instruct the jury, that the evidence in the case is insufficient to sustain the declaration.

A supersedeas to a judgment of the circuit court of Cabell county, rendered on the 19th day of December, 1873, in an action of assumpsit, in which J. R. Winkler was plaintiff, and the Chesapeake and Ohio Railroad Company was defendant, granted on the petition of the said Chesapeake and Ohio Railroad Company.

Hon. Evermont Ward, Judge of the ninth judicial circuit, rendered the judgment complained of.

Johnson, Judge, furnishes the following statement of the case:

This was an action of assumpsit, brought by the plaintiff against the defendant in November, 1871, in the circuit court of Cabell county, to recover a sum of money, due the plaintiff, from Cole, Hubbard & Co., who were contractors under J. J. & T. J. Powers, Jr., who were contractors with said defendant to build certain sections of its road, upon a claim that said defendant had assumed to pay said indebtedness. The declaration was amended by leave of the court, and the amended declaration contained the common counts, " for work and labor performed and materials furnished for the defendant at its special instance and request," " for money had and received by the defendant for the plaintiff's use," and " for money paid out and expended by the plaintiff, for the defendant's use and benefit at its special instance and request."

And also five special counts, the first of which alleges, " that the plaintiff had and held a claim of $500.00 against the firm of Cole, Hubbard & Co., for work and labor performed on the Chesapeake and Ohio Railroad for them as contractors on said road, and the Chesapeake and Ohio Railroad Company being indebted to the said Cole, Hubbard & Co., for the work done on their said road, in consideration thereof promised in writing, signed by them, to pay to the plaintiff the said sum of $500.00 whenever thereunto afterwards requested. The plaintiff avers that the said Chesapeake and Ohio Railroad Company has not kept its promise, and has broken the same, in that it did not pay the said sum of $500.00, although often requested to do so, to the damage of the plaintiff of $500.00, and thereupon it sues," & c.

The second count alleges that Cole, Hubbard & Co., were contractors under J. J. & T. J. Powers, Jr., on said road and employed the plaintiff to perform work and labor thereon to the amount of $500.00, and executed to the plaintiff a note and check therefor, which check was protested and not paid, that said Cole, Hubbard & Co., performed their contract and failed to pay plaintiff for his labor; that afterwards on the 30th day of May, 1871, the said railroad company assumed and promised in writing, signed by it, to pay the plaintiff the said sum of money due by Cole, Hubbard & Co., for labor as aforesaid, and notified the plaintiff with all other claimants, to produce their claims at Hurricane Bridge for payment, where the defendant would pay the same, if approved by said Cole, Hubbard & Co., or sworn to before a justice of the peace; that he did produce his claim, to-wit: the said note and unpaid check aforesaid at Hurrican Bridge for payment, duly signed and approved by said Cole, Hubbard & Co., and delivered the same to one Hood, clerk of W. A. Kuper, agent of said company, and that said Hood took said note and check and has not returned the same to plaintiff and that said defendant had in its hands money due and belonging to said Cole, Hubbard & Co., for work and labor done under said contract, which said money was retained for the purpose of paying this plaintiff; that in consideration of the premises the said company promised the plaintiff to pay him the said sum of $500.00, but although requested, & c., has not kept its promises but has broken the same, & c.

The third count alleges that on the 30th day of May, 1871, at, & c., the defendant advertised and notified in writing, which was duly signed by W. A. Kuper, agent of the defendant, persons holding claims for labor performed for J. J. & T. J. Powers, Jr., and their agents, Cole, Hubbard & Co., on the Chesapeake and Ohio Railroad Company, on sections 186 and 187, to appear at Hurrican Bridge and present their claims, signed as correct, by the parties who employed them, or duly sworn to before a justice of the peace, and the same should be paid on the 16th day of June, 1871, by the defendant; that he did on that day, at the said place, present his claims for labor and work done on the said sections of the road, signed as correct by said Cole, Hubbard & Co., and sworn to before a justice of the peace, and that said company accepted them so attested as correct, and in pursuance of these said agreements, the defendant then and there promised to pay the said sums so due, when requested, yet it has broken its promises and has not paid, & c.

The fourth count alleges, that plaintiff had performed work for Cole, Hubbard & Co., on sections 186 and 187; that said Cole, Hubbard & Co. had quit work on same, and that there was money due from the defendant to said Cole, Hubbard & Co., and thereupon the defendant agreed with plaintiff, that if the plaintiff would continue to work on said road after the said Cole, Hubbard & Co. had quit work, that defendant would pay all his claims for work done before that time, and the work done for defendant after that time. That Cole, Hubbard & Co. were indebted to him for said work and labor, in the sum of $500.00, which remained unpaid, at the time of the agreement aforesaid; that in consideration of the promise of the defendant, he did continue to work on said road, but that defendant did not comply with its promise, but failed to do so and did not pay $500.00.

The fifth count alleges, that the defendant being in arrears and owing said Cole, Hubbard & Co. for divers estimates done on sections 186 and 187, as contractors of J. J. & T. J. Powers, Jr., large sums of money, to-wit, $______, and the said Cole, Hubbard & Co., being indebted to the plaintiff in $500.00, for labor on said sections 186 and 187, the said defendant withheld the said sum of money so due to said Cole, Hubbard & Co., and refused to pay it to them, alleging as a reason therefor, that defendant, intended to pay the money so withheld to the employes of said Cole, Hubbard & Co. on the said sections, for their labor performed thereon, and the defendant so retaining and withholding the amount of money due the said Cole, Hubbard & Co., for work on said sections for the purpose aforesaid, afterwards on the 30th day of May, 1871, the defendant by its agent W. A. Kuper, authorized, and gave authority, to settle with and pay the said plaintiff all claims justly due him for labor performed for said Cole, Hubbard & Co., on said sections, by a certain writing, dated the 30th day of May, 1871, and signed by said W. A. Kuper, as agent of the defendant, whereby the said defendant, promised the plaintiff to pay, on the 16th of June, 1871, at Hurricane bridge, the plaintiff all claims due him from said Cole, Hubbard & Co., for work performed on said sections under and for the said Cole, Hubbard & Co., which were duly signed by them or sworn to before a justice of the peace, and remaining unpaid; that he did on the 16th of June, 1871, at the said place present to one Hood, clerk of said W. A. Kuper, and as such, agent of the defendant appointed and authorized to sell and pay the said plaintiff his claim aforesaid, one note duly signed by said Cole, Hubbard & Co., and sworn to before a justice of the peace, for the payment of $--and also a protested check on -- bank of -- to the said plaintiff for $--, duly sworn to before a justice; that the said note and check so signed by said Cole, Hubbard & Co., amounting to $ -- was for work and labor performed for said Cole, Hubbard & Co., on said sections; and that said W. A. Kuper, by Hood, clerk, agent as aforesaid, received from plaintiff said check and note, and kept the same, and plaintiff alleges that defendant has not kept its promises, but has broken the same in that it did not on the 16th day of June, 1871, at Hurricane bridge, upon the presentation of the plaintiff's claim signed as aforesaid, and sworn to before a justice of the peace, then and there pay the same; nor has it done so since, but though often requested has refused, to plaintiff's damage $500.00, & c.

There was a demurrer to the declaration and each count thereof which was overruled. Afterwards an issue was made up on the plea of non assumpsit, on which there was a trial before a...