24 S.E.2d 277 | W. Va. | 1943
This case was before us once before when we discharged the writ by which it was brought up as improvidently awarded by reason of the fact that no judgment had been entered on the verdict. Baker v. Gaskins,
*328"On this the 7th day of April, 1942, came the plaintiff by L. W. Chapman, her counsel, and came also the defendant W. F. Gaskins by P. Douglass Farr, his counsel; whereupon the court doth proceed to render judgment upon the verdict of the jury in this action, and it is therefore considered and ordered by the Court that the plaintiff take nothing by her said suit, without prejudice to the plaintiff to institute a suit in chancery.
"And it appearing to the Court that the above order was inadvertently omitted to be entered on the 8th day of April, 1941, at the regular April Term, 1941, as appears from the records a memoranda of this Court, it is ordered that the same be entered now as of that day; to which action the Court in so entering this order the plaintiff by her counsel objects and excepts.
"Thereupon the plaintiff by counsel moved the court to set aside the verdict and grant the plaintiff a new trial, which motion is by the court overruled, to which action the plaintiff excepted."
The defendant in error now asks that this writ also be discharged, for the reason that this order was entered nunc protunc as of the date of the verdict, April 8, 1941, whereas, the petition for the present writ of error was filed July 20, 1942. We cannot accept this view of the case. In the first place, the beginning paragraph of the order distinctly states that "On this the 7th day of April, 1942, * * * the Court doth proceed to render judgment upon the verdict of the jury in this action", thus showing by the order itself that the judgment could not have been rendered on April 8, 1941. The second paragraph of the order, therefore, must be disregarded, but if it were perfect in itself and uncontradicted in the record, it would still be futile. An order may not be entered nunc protunc if the rights of any party will thereby be affected adversely. United States v. Gomez, 1 Wall. 690,
The defendant in error also insists that the case cannot be reviewed because (1) the motions to set aside the verdict and for a new trial appear therein to have been made after the entering of judgment; and (2) no grounds in support of the motions are assigned.
A rule of practice in this State, universally accepted, does require that such a motion, in fairness to the court *329
and opposing counsel, should state the ground upon which it is based. But this rule originates in, and belongs strictly to, actions brought in the circuit court where common law rules of procedure prevail. The procedure in an action before a justice is statutory, and by the statute itself is required to be liberal. Code,
The fact that the motion did not specify the grounds upon which it was based is not fatal. The basis of the motion was perfectly obvious: the act of the court in *330
directing a verdict against the plaintiff. No other adverse ruling by the court appears in the record. In the case ofHinton Milling Co. v. New River Milling Co.,
We thus arrive at the merits of the case. There is no material factual dispute. In the spring of 1925, Charles E. Baker, who is the plaintiff's husband, E. A. Baker, who is the brother of Charles, and W. F. Gaskins, who is a cousin of the Bakers, became the owners of a "lunch wagon" operated in West Union, Doddridge County. This wagon was in fact a discarded trolley car remodeled. This enterprise was conducted by the owners until the latter part of June or first of July of the same year, when the property was leased to a third party. The lunch wagon was sold in 1938 for $60.00, one-third of the price going to each of the three owners. During the period of the operation of the lunch wagon, the plaintiff worked for the owners in the business, but was not paid for her services. In October, 1926, however, they executed to her a paper writing as follows:
"Oct. 8, 1926.
This is to certify that we three (undersigned) promise to pay to Mrs. Irma Baker for working in Busy Bee Lunch Eleven weeks at $12.00 per *331 week or ($132.00) with interest from date. To be settled in full when complete settlement of Lunch Wagon is made, signed:
W. F. Gaskins E. A. Baker Chas. E. Baker."
Nothing having been paid on this obligation at the time of the sale of the lunch wagon, the plaintiff immediately thereafter made demand on the signers of this instrument. This effort availing nothing, an action was brought by her before a justice of the peace of Doddridge County on November 12, 1940. She and her husband then lived in Ohio, and the husband was not served with process, and did not enter an appearance. The justice rendered judgment for the defendants, and the plaintiff appealed the case to the circuit court. On the trial in that court, after both the plaintiff and the defendants had introduced their evidence in full, upon motion of the defendants, the court directed the jury to return a verdict in their favor, which was done accordingly.
The evidence discloses no attempt to justify such refusal of payment, except, apparently, the contention that there has not been a "complete settlement of the Lunch Wagon" as required by the terms of the writing sued on. The evidence is to the effect that the ownership of the lunch wagon and business was equal, but that the parties did not contribute equally in its purchase or to the expenses of its operation. No accounts of the partnership were ever kept, and only the most casual memoranda by individual partners are mentioned. It appears very doubtful from the evidence if an even approximately correct account can now be ascertained. The business of the partnership was very small, and the contributions by the operators were but little. No property was owned by the partnership, except the lunch wagon with some dishes, stools, a coffee urn and like equipment. All have disappeared and are unaccounted for except two stools and a coffee urn of trifling value. No outstanding accounts receivable or payable are shown. The evidence discloses no effort at settlement *332 until after demand of payment by the plaintiff. These attempts were desultory and abortive, and no present intention of further effort is disclosed.
We think that a jury might well have considered that for all practical purposes, the lunch wagon business was sufficiently settled to entitle the plaintiff to demand payment from that consideration alone. Therefore, the case should not have been taken from the jury. But more important than this is the principle of law that where a payment is to be made or a contract is to be otherwise performed at a future date when the persons bound or obligated shall have done some thing which lay in their power, the payment or other performance will be considered as required to be done on demand within a reasonable time. "Where a contract fixes no definite time for performance the law usually implies that performance shall be within a reasonable time, and the rule applies to the performance of a condition precedent, or of an act dependent on the will of the promissor." 17 C. J., Contracts, sec. 503, p. 1063. See also,Glazer v. Klughaupt,
Accordingly, the judgment of the circuit court will be reversed, the verdict of the jury set aside and the plaintiff awarded a new trial.
Judgment reversed; verdict set aside; new trial awarded.