93 W. Va. 382 | W. Va. | 1923
Prom a judgment for $214.40 rendered on the 20th of May, 1922, upon a directed verdict, defendant prosecutes this writ of error;
The error relied upon for reversal is that the court, over defendant’s objection, directed the jury to find a verdict for plaintiff. Defendant’s brief and argument are based upon this assignment. The suit originated in the court of a justice of- the peace, on two negotiable notes each for the sum of $100, the first dated May 18, 1921, and the second dated May 15, 1921, payable to plaintiff, signed by defendant and endorsed by J. C. Myers; the first note becoming due on September 15, 1921, and the second on October 15, 1921, both of which notes were protested for non-payment. A jury in' the justice’s court returned a verdict in favor of plaintiff, and án appeal to the circuit court was granted where the judgment cdm-
Defendant was engaged in fulfilling a contract with the Morgan Lumber Company for hauling certain logs and manufacturing them into lumber on the north fork of Anthony’s Creek in Greenbrier County. John Kessinger was the manager of the Morgan Lumber Company, and it became apparent to both Lynch and Kessinger that Lynch was in need of a team of horses in carrying out his lumber contract. Kessinger suggested that J. C. Myers, who was in the lumber business in that vicinity and for whom he had formerly worked, had a team, known as the Myers team, which would be suitable for the work required, and Lynch sent Kessinger to see if the team could he .purchased. The team at that time was at Wade’s crossing and was in the custody of Bowling-Harden Company. Lynch went to look at the team, and they were shown to him by John Andy Gum, and he concluded that they were suitable for his purpose, and authorized Kessinger to purchase them. Kessinger then went to Myers to see if the team could be purchased, and told Myers that Lynch would pay $500 for them in deferred payments; Myers informed Kessinger that .the Bank of White Sulphur, the plaintiff, held a deed of trust lien on the horses and that he could not dispose of them without the assent of the beneficiary in the trust deed, and directed him to go to the bank and get its consent to the sale. Kessinger then proceeded to see the cashier of the Bank, Hines, who agreed to release the lien upon the team if the money therefor, the $500, was paid to the bank, and directed that the notes be made payable to the bank. Kessinger then returned to Myers where the sale was concluded, and the notes were drawn up, which notes he then took to Lynch, who signed the same. It appears that Kessinger told Lynch when the notes were signed that he would personally bring the horses down from Wade’s crossing on the following Monday. The notes were signed about the 7th or 8th of May, and post dated the 15th and 18th of that month in order that Lynch could meet them after his pay day^ which seem to have been about the 10th of each month. Kessinger took the notes and delivered them to the bank and on the following Monday went to Wade’s crossing
The controlling question in this ease is the agency of Kes-singer in this transaction; whether he represented Lynch or Myers or the bank. The conclusion of Lynch that Kessinger represented the bank seems to us to be entirely erroneous and not justified by the facts which he brought out himself. It clearly appears from the evidence that Kessinger was acting under the direction of Lynch to secure for him a suitable team for the advancement of the work in which he was engaged. He received no1 compensation from Lynch, but was acting in a friendly way in order to promote the fulfillment of the contract which he had with Kessinger’s company. Kessinger received no pay or consideration whatever from either Myers or the bank. The facts warrant the conclusion that in all these transactions Kessinger was the agent of Lynch, and Lynch is bound by what he did. Lynch had inspected the horses before he concluded to buy and had instructed Kessinger to purchase them for' him. He confirmed the purchase by signing the notes with full information as to the facts. Questions of law in actions relating to principal and agent, as in other civil actions, are for the determination of the court and it is error to submit them to -the jury where the facts are uncontroverted. We think the dower court properly concluded from the facts detailed that Kessinger was the agent of Lynch and not of the other parties. Therefore, the statement made to Lynch by Kessinger at the time
Under these facts if there had been a verdict for defendant it would have been the duty of the court to set it aside. The evidence plainly and decidedly preponderated in favor of the plaintiff. On a motion for a directed verdict the court should be guided by what its action would be if a verdict was re^ turned for the opposite party, and motion made to set aside that verdict. White v. Hoster Brewing Co., 51 W. Va. 259. In discussing this salutary rule Judge Dent in the last cited case aptly said: “Shall the circuit court in a plain case be compelled to sit still and permit a jury to .bring in a verdict contrary to the plain and decided preponderance of the evidence, and then set it aside and be compelled to repeat the farce of a trial? Or shall the circuit court follow the settled practice of the courts of the United States' and direct a verdict against the party in .whose favor the evidence does not warrant a verdict ? ’ ’ He quotes from Merchants National Bank v. State National Bank, 10 Wall. 604, as follows:' “The
We cannot see that there was any substantial conflict over any fact material to the issue which should have been submitted to the jury. It follows from what we have said that the judgment is affirmed.
Affirmed.