65 W. Va. 518 | W. Va. | 1909
This is a civil action begun by plaintiffs against defendants, before a justice of Lincoln county, to recover the price of a lot of railroad cross-ties. The judgment of the justice was for defendants, but upon appeal to the circuit court the plaintiffs obtained a verdict and judgment there against defendants for $235.59, and the defendants have brought the case here upon a writ of error.
It is conceded that the ties were gotten out and delivered by plaintiffs at Six Mile, a way station on the Guyandotte. Valley
We do not see anything, however, in these admissions or transactions of plaintiffs materially inconsistent with their present claims. Swann as a witness for defendants admits, in corroboration of the testimony of plaintiffs, that he never measured, inspected, received, accepted or paid the plaintiffs for the ties, or authorized or directed any one to do so for him; that after being notified by plaintiffs of Swann’s failure to take up the ties defendants sent Jorden to take them up and bill them out to the railroad; and that before completing the work of measuring, inspecting and billing them out Jorden was given notice that the ties were the property of plaintiffs, had never been delivered to Swann or paid for by him, and that they would not take Swann or look to him for their pay; that defendants have never paid or settled with Swann for the ties in any other way except to credit him on an old prior account, existing when the order for the ties was given Swann and by him turned over to plaintiffs. We must regard the controverted facts-depending on the conflicting oral evidence as settled by the verdict of the jury in favor of plaintiffs.
Three questions are presented: First, had the title to the ties passed to Swann at the time the}*- were inspected and taken up by defendants ? Second, if the title had not passed to Swann, are plaintiffs estopped by their acts, conduct or admissions as against defendants from controverting this fact? And, third, was Jorden so far the .agent of defendants in taking up the ties as to make notice to him of plaintiffs claims and rights notice to his principals? The answer to these questions will dispose of all the material points of error presented by the record.
Whether a sale of personal propertjr is complete or only ex-ecutory is to be determined from the intent of the parties as gathered from the contract, the situation of the thing sold and the circumstances surrounding the sale. Morgan v. King, 28 W. Va. 1, 14; Hood v. Bloch, 29 W. Va. 244; Osborne v. Francis,
Was notice to Jorden notice to defendants of plaintiff’s rights ? If he was their agent to inspect, measure, receive, take up and report to them the ties billed out to the railroad company, as defendants admit, although he was also the agent for the railroad company about the same matter, we think that notice to him of plaintiff’s claims was notice to them, and that it-was his duty to have reported to them the facts. The defendants had no other agent present for that purpose. They relied on Jorden, and if they had not had the notice directly from plaintiffs, notice to Jorden was sufficient to bind them. The law on this question as laid down in 1 Parsons on Contracts, and approved and followed by this Court in Hart v. Sandy, 39 W. Va. 646, 655, is that “a principal is affected by notice to his agent respecting •any matter distinctly within the scope of his agency when the notice is given, before the transaction begins, or before it is so far completed as to render the notice nugatorjc” And this writer says in the same connection: “Knowledge obtained by the agent in the course of that very transaction is notice; and it has been said, that knowledge obtained in another transaction, but so short a time previous that the agent must be presumed to recollect it, is also notice affecting the principal.” In the foot note, at page 79, it is said in the same book: “The reason generally for charging the principal with notice is that it is the duty of the agent to communicate to his principal the knowledge he has of the subject matter of the agency.” Lewis v. Arnold, 13 Grat. 454, relied on by defendants, we do not think in conflict with this doctrine. The only question decided in that case, and sought to be applied here was, that A’s boatman sent to get the salt delivered to him by N, and after it was delivered on the boat, was not competent as A’s agent to abandon the salt and relinquish his legal rights, a point inapplicable here, for no such question is presented. If the question in that case had been whether notice then given the boatman of the claims of L to the salt in question was notice to A, the exact point we have here would have been presented. In the case of Hart v. Sandy, supra, this Court quotes from Story on Agency, section 140, as follows: “Notice of facts to an agent is constructive notice thereof to the principal himself, where it arises from or is at the time
We perceive no errors in the judgment or ruling of the court below of a nature prejudicial to the defendants, and the judgment below is therefore affirmed.
Affirmed.