71 W. Va. 114 | W. Va. | 1912
This case involves only rulings upon instructions and a motion to set aside a verdict for the defendant in an action by agents to recover commissions on a sale of timber, alleged to have been made by them or through their efforts.
Lyons authorized Buffington and McVay, by a written instrument, dated August 16, 1906, to sell certain Raleigh county timber for him, on land known as the “Prince Tract,” for $31,-000.00, and thereby agreed that they might have, as commission for their services, all they could obtain for it in excess of said sum, but their agency was not made exclusive. He expressly reserved the right to sell it himself or put it in the hands of others for sale.
Having obtained this authority, they sought a purchaser through, the Strubble-Frazier Co., a Pittsburg firm of brokers, who arranged a meeting between them and one C. H. Williams at Beckley, in Raleigh county. They took Lyons with them. Williams professed to be acting for himself and some associates, whose identity he did not disclose. After the timber had been examined, a contract was entered into, signed by Lyons, Buffing-ton and McVay, as parties of the first part, and Williams, as party of the second part, by which a sale of the timber was made to Williams for the sum of $40,000.00, payable as soon as a survey and plat could be made and an abstract of title prepared. Lyons remained at Beckley a day or two after the paper was signed to have the survey made. Later he, Buf-fington and McVay went to the Hnion Savings Bank in Huntington and made an arrangement with Mr. Fuller, its president, as to which there is some conflict in the evidence, but Lyons left there a draft for the purchase money, signed in blank and to be filled out, when the identity of the purchasers should be
Nearly a year later, the timber, together with some on adjoining lands, was sold and conveyed by Lyons to T. B. Palmer and I. W. Seaman of Pennsylvania for $44,500.00, the men who, ’Williams says were his undisclosed associates, in the contract of ■•sale made to him. Lyons claims he never knew Williams was buying for them or was in-any way connected with them in the ■negotiations and there is no direct evidence that he did. Williams had them in view as purchasers, and Buffington and Mc-Vay knew it, for they came with Williams to Huntington after the contract was signed, and went from there to look over the timber. Palmer also admits Williams turned over to him the •contract and a certain bond on his return from the first trip to Huntington and Beckley. -Williams swears he was a partner with Palmer and Seaman in the Palmer & Seaman Lumber Company. Palmer denies this,' saying he was not and never had been a partner, but admitting his acquaintance with him and his employment by the firm as general manager after the contract of September, 1906, had been made.
One A. J. Frazier, of Corsica, Pennsylvania, who, Williams says, was sent by Palmer to look at the timber at his suggestion, g-ot Lyons and Palmer and Seaman together at the Ft. Pitt Hotel in July, 1907, and Lyons there gave Palmer and Seaman an option on the property, which was extended until ’.sométime in August, when a sale was made' under it. Palmer
Five of the seven instructions requested by the plaintiffs . Avere refused. Their instruction No. 1, if given, would have - submitted to the jury the existence of a valid contract of employment of the plaintiffs by the defendant and the making of the contract of September 26, 190-6, and required them to ■ render a verdict for the plaintiffs, if they should find that these two contracts had been made. Their instruction No. 2 would have told the jury the contract of September 26, 1906, the contract of purchase, was enforcible by either party to it in a proper proceeding. Both of these instructions proceed upon-
The refusal of plaintiff’s instruction No. 6 was prejudicial error. Its purpose was to tell the jury a departure from the price and terms at which the purchasers, procured by the plaintiffs, if they did procure them, á question which the evidence ivas sufficient to carry to the jury, would not preclude a recovery of the commission. That the sale was made on different terms and at a different price may have been controling with the jury. It may be the very ground upon which they found for the defendant. Had the court told them the departure was immaterial, in case the other facts should be found in favor of the plaintiffs, they could not' have based their finding upon the departure from the original price and terms. An error in the giving or refusal of an instruction is presumed to be prejudicial and is cause for reversal, unless the court can see it wrought no injury. Lay v. Coal Co., 64 W. Va. 288; Ward v. Brown, 53 W. Va., 227.
The judgment will be reversed and a new trial allowed.
Reversed