43 W. Va. 441 | W. Va. | 1897
The Boone Lumber Company complains of a judgment of the Circuit Court of Kanawha county, rendered against it on the 5th day of April, 1895, in favor of J. IT. Barnett, for the sum of one thousand one hundred and thirty-two dollars. The following is a statement of the case : “On the 8d of November, 1891, Q. ¡8. «cites and Isaac ITumley entered into a contract with the J. H. Millender Lumber Company for the sale of logs at that time on the A. M. Smith tract of land, lying on Cobb’s creek. On the 20th of January following, «cites, having purchased Plumley’s interest, was released from the agreement by the assumption of certain indebtedness, accompanied by a cash payment of $590. Prior to the formation and release of this
The court gave the following instructions to the jury in behalf of plaintiff : “The court instructs the jury that the
As the instructions given fully and completely cover defendant’s case, it is useless to cumber the record with those refused, as they cover the same grounds as those given, and some of them are plainly erroneous, and the court committed no substantial error in refusing them. The only question involved in this case is whether the defendant, by its duly authorized agents, accepted the orders in controversy in such manner as would make it legally liable to pay the same to the plaintiff. Such was the real issue between the parties. The acceptance was verbal, and if made without other consideration than the debt, default, or misdoing of another, it was void under the statute of frauds, and, if conditional, it would not be binding until the condition was fulfilled, even if on good consideration. Gerow v. Riffe, 29 W. Va. 462 (2 S. E. 104); 1 Am. & Eng. Enc. Law, 227; Walton v. Maudeville, 56 Iowa 597 (9 N. W. 913); Browne, St. Frauds, 174; 2 Bob. Brae. 152. Neither of the instructions given by plaintiff properly propounds the law. They are to the effect that, the verbal acceptance of an order, without regard to the consideration, is valid and binding, which would amount to a nullification of the statute of frauds. They are abstract propositions of law, and virtually equivalent to instructing the jury “that, if they believe that the defendant verbally promised to pay the or-
The defendant’s interrogatories are open to the same objection as the plaintiff’s instructions. It may be true that the defendant was not indebted to G.-S. Scites, the drawer of the order, and that there was no novation, or arrangement between the parties, by which the plaintiff was to release tícites and take the defendant for the amount of the orders; yet, if the plaintiff' released a valid lien on the logs, and the defendant received the benefit of such release, such a consideration would be sufficient to make the verbal promise binding. Gerow v. Riffe, supra, and cases therein cited. The defendant objects to the testimony of Godfrey tícites in relation to the understanding between himself and the plaintiff as to his right to hold the logs until he was paid for the hauling. There certainly
For the error committed in giving the plaintiff’s instructions the judgment of the circuit, court is reversed, the verdict of the jury set aside, and anew trial awarded.
Reversed.