86 Va. 153 | Va. | 1889
delivered the opinion of the court.
This is an action of assumpsit brought by Hays & Angell to recover of Adams Bros. & Payne the sum of $745 83, for
Thereupon the defendants moved the court to set aside the verdict and grant them a new trial; which the court refused to do. . And this action of the coui’t constitutes the only assignment of error in this court, the preliminary objections made in the lower court having been expressly withdrawn in this court.
The ease, therefore, comes before us under the rule prescribed by the Code (see Va. Code, 1887, § 3484, p. 829,) as upon a demurrer to evidence. In such ease the demurrant is regarded as waiving all of his evidence in conflict with that of the demurree, admitting the evidence of the demurree and all reasonable inferences to be drawn therefrom, and as being entitled to only such evidence of his own as is not in conflict with that of the demurree and such inferences as necessarily flow therefrom. Va. & Tenn. R. R. v. Trout, 23 Gratt., 619; Creekmur v. Creekmur, 75 Va., 432. Viewing this case in the light of this fixed rule of practice, it is perfectly apparent, from an inspection of the record, that the contention of the plaintiffs in error cannot be maintained.
By the terms of the contract, which was oral, the brick were to be manufactured for Adams Bros. & Payne at the rate of $4 50 per 1,000, “kiln count.” As to measuring, of these words there is a conflict of testimony, the witnesses for the plaintiffs below testifying that, as between the manufacturer or maker of the brick and a dealer in brick, it means “the number of brick in the kiln, estimated by counting the headers and stretchers of the middle course, and then counting the number of courses and multiplying them together, deducting for the eyes; ” whilst the witnesses for the defendants testified that the meaning of these words is, “ an actual count of brick
The next item of difference is as to an amount of $60, paid a hand at the rate of $1 per day, for loading the brick in the vehicles for transportation, which the plaintiffs in error seek by some sort of a mathematical calculation to reduce to $33 70.
The objection to the ninth item of the plaintifis’ account is also untenable. It is a charge of $302 50 for 55,000 brick at $5 50 per thousand. As to this charge the witness (Angelí) testifies that these brick were from'a kiln burned by the plaintiffs for the defendants under a special contract made after the fifth kiln had been burned; and the price paid ($5 50) being in excess of that charged for the first three kihjs, gives some countenance to the idea, suggested in the record, that the price is greater when the brick are furnished otherwise than by the kiln.
. As to the last disputed item, the tenth, in the account, for 50,000 brick left in the yard, we think the jury might well have found for the plaintiffs. It was the estimate of men engaged in the brick business, who were accustomed to make such estimates, but who had no right, after their contract relations had ceased, to go upon the premises for making a count. But even if there has been some trilling error in making this estimate, and, perhaps, in making some others, we feel satisfied that the plaintiffs in error have been fully compensated for such errors by the action of the jury in reducing the account of the plaintiffs by the sum of $160 83. Indeed, the inference is not unreasonable that the jury took these discrepancies in the estimates made of some of the smaller items in the account and made the above-mentioned deduction expressly to cover them.
But if the case were not so clearly with the defendants in
After a careful examination of the case, we see no reason for questioning the judgment of the hustings court of Roanoke city, and it must be affirmed.
Judgment affirmed.