123 S.E. 398 | W. Va. | 1924
This writ of error is prosecuted to a judgment of the circuit court in favor of plaintiff against defendants, entered September 27, 1923, on a verdict of $5,000 for damages for the breach of a timber contract.
Plaintiff claims that he had a verbal contract with defendants by which he was to cut down, transport to his mill, and *564 saw certain timber belonging to defendants on what is known in the record as the "lower job," at the price of $25 per thousand feet; and that after beginning work under the contract he was prevented from carrying it out by defendants, thus causing the breach. Defendants claim that there was no such contract made. On the general plea of non-assumpsit the parties went to trial with the result above indicated.
Plaintiff testified that the verbal contract was made with F. L. Parr, a member of the firm of King Parr, on June 15, 1920, at his office at Kessler, in the vicinity of defendant's lumber operations. At that time Belcher was employed to saw lumber at $7.00 per thousand feet by Floyd S. Chapman, who was cutting, manufacturing and putting on sticks the timber on an operation conducted by defendants, known as the "Big Bull Hollow job," at the price of $30 per thousand feet. Belcher owned the sawmill which was doing the cutting. He was sent for by Parr to come to his office at Kessler, on June 15, 1920, where, he states Parr first proposed to rent his mill for the Big Bull Hollow operation, at a stated price, instead of continuing under the contract with Chapman. Belcher offered to rent it at $150 per month, but Parr offered only $100 per month, but agreed that if he got the mill at $100 per month he would contract with Belcher to cut, haul and manufacture the timber on the "lower job" at the price of $25 per thousand feet, to which Belcher assented; that the mill was turned over to defendants, and they proceeded to use it at the stipulated price of $100 per month, and that plaintiff immediately began preparation for cutting and sawing the timber on the "lower job;" that he employed workmen to build a building near the "lower job" in which the loggers would sleep; employed Sheppard and his son and others to cut portions of the timber and that they did cut about 175 trees, and that he dug out, constructed and improved a road through the premises for hauling the logs to the mill; and while doing so he was ordered to desist by Parr who claimed that he had no right to cut the timber, construct or improve the road; and in short had no contract. On the other hand, Parr detailed the conversation at his office at Kessler and claims that it was on the 15th of August instead of on the 15th day of June, 1920; that Floyd Chapman was *565 present and no such agreement was made concerning the "lower job," but that the mill was rented at $100 per month, and that the beginning of the payments at that price was to be dated back to the 15th day of June; that the frame building for the loggers on the "lower job" was suggested to be built by Belcher and that he, Parr, furnished the lumber and material therefor, the men to construct the building; that the men who were employed to cut trees on the "lower job" were in his employ, all of whom were paid for their work prior to the 15th of August, the date when the alleged contract was claimed to have been made with Belcher; that at that time he was negotiating for the timber on the Chew, Johnson and Femster tract which lay between the river and another tract lying on the mountain, the timber on which he owned (the two tracts forming what is known as the "lower job"); and that he purchased this timber on the Chew, Johnson and Femster tract in the fall of that year; that as Belcher knew the lines of the Chew, Johnson and Femster tract, he had asked him to show the hands where to do the cutting, but as a matter of fact a portion of the logs cut were on the tract which he had not as yet bought; that he did not know that Belcher was constructing the road until he went on the land and found him so engaged, when he told him to cease, that he had no contract with him whatever concerning the "lower job". Chapman corroborates Parr in the statement that no contract was made concerning the "lower job" in his presence at the office at Kessler. He says he was present on that occasion engaged in compiling some statement or calculation concerning the lumber business and did not pay strict attention to what transpired, but that if there had been a contract concerning the "lower job" entered into between the parties he would have recollected it. Chapman's evidence was somewhat weakened by the record of a former trial of the case in which it appears that he was not very clear as to whether a contract concerning the "lower job" had been entered into between Belcher and Parr. It appears that about the first of November, 1920, witness, Levi Jones, was sent to estimate the timber on the Chew, Johnson and Femster tract, pending the purchase thereof by deed from the owners. When they arrived on the tract they found *566 Belcher with a team of mules making a road or roads thereon. It appears that a controversy arose between Parr and Belcher relative to the right of way over that land, Parr claiming that they had not yet secured the right of way, the plaintiff saying that he had been told that the right of way had been secured. However, the work on the road was postponed, and Belcher was sent with Jones to point out the lines and assist in estimating the timber. After that time Parr would not permit the plaintiff to do any further work. Parr claims that at that particular time when he found Belcher making the roads a heated controversy arose between them and he drove Belcher away. Belcher claims that he was asked to desist for awhile in the construction of the road and directed to assist Jones in his work of estimating the timber. There is sharp conflict between Belcher and Parr as to what occurred on that particular occasion. The evidence of Jones is to the effect that he was employed by Parr, with whom he went to make an estimate of the timber on the two tracts, and when they arrived on the scene they found Belcher on the Chew, Johnson and Femster property with a team of mules making a road, and a conversation ensued between Parr and Belcher relative to some contract about which the witness was not interested and which conversation he says was somewhat heated, but which wound up by Parr directing Belcher to assist in showing the lines of the two tracts and in making the estimates of timber. The evidence of Jones is somewhat corroborative of that of Belcher. There is other evidence, unnecessary to detail, which corroborates the contentions of both parties. Columbus Belcher was a witness for plaintiff, and detailed statements made to him by Parr to the effect that he intended to give or had given the "lower job" to plaintiff. The testimony of Columbus Belcher is challenged as incompetent because he had been convicted of a felony and sentenced therefor, and had not been punished or pardoned. This is one of the points of error which will be hereafter considered. The plaintiff testified that he was at all times able, ready and willing to perform the contract; that he had teams and two mills, had made a contract for cutting and slipping the timber on the two tracts at $7.00 per thousand, and that he could have sawed the logs at an expense of $5.00 per *567 thousand feet, leaving him a net profit per thousand of $6.00 on his contract; that he could have made a net profit of at least $6.00 per thousand if he had been permitted to perform his contract. Defendants showed that they manufactured the timber into lumber the following year at a cost of $29.32 per thousand, including the cost of putting the lumber on sticks, the cost of which latter item was not shown. This estimate included the cost of a bookkeeper at $150 a month and the salary of a Mr. Lusk who got the timber out on the "lower job", who was paid $250 per month. There was also evidence introduced to show that the price for labor was lower in 1922 than in 1920 and 1921, the time in which Belcher was to have done the work under his supposed contract. A summary of the evidence, not very full, has been given because error is assigned on the ground that the verdict is contrary to the preponderance of the evidence and should have been set aside on that ground; and because it was error to refuse a peremptory instruction to find for defendant. We do not think it was error to refuse the peremptory instruction. If the jury believed plaintiff's testimony there was sufficient evidence to warrant the finding that there was a contract as claimed and that it had been breached. It is not necessary to cite authorities sustaining the proposition that it is for the jury to pass upon the credibility of witnesses and the weight to be given to their evidence; and that their finding as to the weight and credibility will not generally be disturbed. Mere numerical preponderance in the number of witnesses is not sufficient to determine the preponderance of the evidence. The jury may believe or disbelieve the verbal testimony of any witness. It is well settled that a court will not set aside the verdict of a jury if the judge sitting as a member of the jury would have found a different verdict, and would have concluded that the preponderance or weight of evidence was against the party prevailing. And when we consider the evidence and the alleged part performance of the contract and the circumstances, we can not say that the jury was biased or prejudiced or that it was influenced by some ulterior or sinister motive in finding for the plaintiff. We can not reverse the case on the ground that the verdict is contrary to the weight or preponderance of the evidence. *568
In the petition error is assigned because of the giving and refusing to give instructions, but this assignment is not insisted upon or mentioned in the brief (except the refusal to give the peremptory instruction), and this assignment will be regarded as having been abandoned, and will not be considered.
The next ground of error is that the evidence of Columbus Belcher should have been stricken out and not permitted to go to the jury, because he was a convict under sentence at the time his evidence was given. No objection was made to his testimony on the ground that he was a felon under conviction until he was turned over to defendants' counsel for cross-examination, when it was brought out by his testimony that he had been convicted of murder, in Mingo county, and sentenced on the 4th of July, 1909, to be hanged; that his sentence had been commuted to life imprisonment by the Executive and that he had been given a parole or conditional pardon and had left the penitentiary in October, 1917, and that the condition of his pardon was that if he did not violate any of the laws for a period of two years he would be restored to full citizenship; and that he had not so violated his conditional pardon, had been an officer for about three years prior to the time of his testimony, and had voted in the elections. A motion was made to strike out his evidence and exclude it from the jury, but the court refused to do so, holding that under the verbal testimony of the witness, the introduction of which was objected to by neither party, the pardon restored the witness to full citizenship under section 17 of chapter 152, the first part of which says: "Except where it is otherwise expressly provided, a person convicted of felony shall not be a witness, unless he has been pardoned or punished therefor." Was it error not to exclude the evidence of this witness? Our statute, a portion of which is above quoted, prevents a person who has been convicted of a felony from giving testimony in a civil case unless he has been pardoned or punished therefor. At common law the conviction for an infamous crime and judgment thereon destroys the competency of a person as a witness. When an objection is made to a witness because of conviction of a felony it must be supported by the record of the conviction and judgment, or *569
by a duly authenticated copy. It must be produced and offered to sustain the objection at the time the witness is offered, or at the farthest in the course of the trial. It is too late after the verdict has been rendered. It is universally held that the party objecting to the testimony must be prepared with the record, expressed by some of the cases, "that he must come with it in his hand or he shall not be heard against the competency of the witness." A citation to the very numerous authorities and textbooks on this proposition will be found in Volume 4 Jones on Evidence, section 718, See State v. Williams,
The remaining assignment of error is that the evidence to sustain the amount of damages given is too indefinite and speculative; and it is pointed out that inasmuch as defendants cut the timber in the year following when prices of labor were lower, at $29.32 per thousand feet, the jury would not disregard this positive evidence of the actual cost. We do not think the evidence of what it cost defendants to cut the *571
Timber per thousand is conclusive. It will be noted that several items of cost were added to this estimate which would not enter into the plaintiff's expenses, namely, the salaries of a bookkeeper and a superintendent who overlooked the cutting of the timber at $250 per month. It will be further observed that in this estimate of $29.32 per thousand the cost of putting the lumber on sticks was included; whereas, it is contended by Belcher that his contract did not include the stacking of the lumber on sticks. The items of cost which enter into the computation of the $29.32 per thousand are not given. It is not stated what was the cost of cutting and slipping the timber per thousand nor the cost of hauling it, putting it on the skids, nor the cost of sawing. On the other hand, plaintiff testified that he had already made a contract for cutting and slipping the timber at $7.00 per thousand; that he had several offers to put the logs on skids at the mill at $7.00 per thousand, but that he could have hauled the logs with his mules at a cost of $5.00 per thousand feet. He further testified that he could have sawed the lumber at $5.00 per thousand. He had been in the lumber business in that region all his life practically, and was competent to testify as an expert to the cost of cutting, hauling and sawing. Defendants did not pretend to show that these items of expense would have been smaller. Defendants, to sustain their proposition that the evidence was not of such a certain and definite nature on which a verdict could be based, cite: Tingler v. Lahti,
Finding no reversible error, the judgment will be affirmed.
*574Affirmed.