47 W. Va. 425 | W. Va. | 1900
This is an action of assumpsit, brought'December 18, 1893, in the circuit court of Braxton County, by Nelson M. Bennett, survivor of himself and M. T. Frame, deceased, against Franklin Perkins, survivor of himself and Elijah Perkins, deceased, upon the following contract in writing, to wit:
“For value received, We, or either of us, promise to pay M. T. Frame & N. M. Bennett the sum of three hundred
“ Franklin Perkins,”
his
“Elijah x Perkins.”
mars
The defendant appeared on the 24th of April, 1894, and tendered two pleas in writing, marked, respectively, “No. i” and “No. 2.” No. 1, being simply the general issue of non assumpsit, was filed, and replication thereto. Plaintiff objected to the filing of plea No. 2, and the court took time to consider of said motion, and, on motion of defendant, Albert Shock, surveyor of said county, was directed to go upon the lands mentioned in plaintiff’s declaration, and referred to in the contract sued upon, and any adjoining lands thereto, and do such surveying as either party might-demand or require, and report same to the court, with a plat and seven copies thereof; and on the 22d of August, 1895, the defendant tendered plea. No. 3, to the filing of which plaintiff objected, which objection the court overruled, and the plea was filed, and plaintiff replied generally thereto, and the court, having considered the objection to the filing of plea No. 2, theretofore tendered, sustained the objection, and rejected the plea; to' which rulings of the court defendant excepted. A jury was then impaneled, and, having heard all the evidence, on the 23d day of August, 1895, the plaintiff filed a demurrer to the evidence of
The second assignment alleges that it was error to permit counsel for plaintiff to ask plaintiff as a witness, as set out in bill of exceptions No. 2: “Do you know who has been in possession of the two tracts of land mentioned in these deeds? I mean since the execution of this contract,” —to which witness answered: “Mr. Franklin Perkins did reside on the four hundred and thirty-seven acres, and has since, down until a year or two or three. He has moved lower down, where his father formerly lived. The fifty-eight and one-half acres has also been in his possession, as I understand it.” The fact of continued possession was attempted to be shown as a circumstance, only, favorable to the contention of plaintiff. Surely, if defendant had been ousted from the premises as a result of th^ enforcement of the judgment which plaintiff had contracted to defend against or threatened with ouster or trouble therefrom, the defendant would be entitled to prove such fact in defense of plaintiff’s action, and plaintiff was entitled to prove any fact tending- to show the fulfillment of the contract on his part.
The third assignment alleges that it was error to overrule defendant’s motion to exclude plaintiff’s evidence, as set out in bill of exceptions No. 3, whereby it appears that, after plaintiff had introduced all his evidence in chief, and rested his case, and before defendant had introduced any evidence, defendant moved to exclude the evidence of the plaintiff. In Carrico v. Railway Co., 35 W. Va. 389, (14 S. E. 12,) (Syl., point 3): “A motion by the defendant to exclude the plaintiff’s evidence upon the ground that it is not sufficient to warrant a verdict in his favor, will not be
“Fourth. It was error for the court to require defendant to join in plaintiff’s demurrer to the evidence, ” as set out in bill of exceptions No. 4; and, fifth, “It was error tu render judgment, on the demurrer to the evidence, for plaintiff.” The contract sued upon here was for the payment to plaintiff of the sum of three hundred dollars in case he succeeded in relieving or releasing two certain tracts of land from the lien of a judgment which endangered it. If he was wholly successful he was to be paid the three hundred dollars, with interest, but, in the event he should fail to release both of said tracts from said lien, and should relieve from liability the one tract on which said defendant then lived, then he was to be paid the one-half of said sum. The burden of proof was upon the plaintiff to show to the satisfaction of the jury that he had performed his part of the contract, and was entitled to recover the three hundred dollars, or the one-half thereof, as the case might be. Counsel for plaintiff contend that either party may demur to the evidence, and cite Insurance Co. v. Wilson, 29 W. Va. 528, (2 S. E. 888); Shaw v. County Court, 30 W. Va. 488, (4 S. E. 439), and Arnold v. Bunnell, 42 W. Va. 479, (26 S. E. 359), in support of their contention, and this is true, with certain restrictions. 6 Enc. Pl. & Prac. 440, says: “Either party has a right to demur to the evidence, but the demurrer is only applicable to the evidence of the party holding the affirmative of the issue.” In
The sixth assignment is that it was error not to render judgment for defendant on the demurrer to the evidence.
It follows that the judgment and the verdict of the jury should have been set aside, aud the plaintiff’s action dismissed.
Reversed.