48 W. Va. 1 | W. Va. | 1900
William H. Chapman filed his declaration in assumpsit at August rules, 1895, in the circuit court of Ohio County, against J. W. Beltz & Sons Company, with which declaration plaintiff filed the following bill of particulars:
*3 J. W. Beltz & Sons Company to William H. Chapman, Dr. 1895.
March 23. To amount advanced upon contract. $2,000 00
July 1. To labor in removing wreckage from fallen building. 245 00
July 1. To damage from being deprived of use of land for six months. 600 00
$2,845 00
Interest will be claimed on each item from its date.
On September 4, 1895, defendant appeared and demurred to the declaration and to each count thereof. Afterwards, on the 20th of November, the demurrer, being argued, was overruled, and the defendant pleaded the general issue, and asked and obtained leave to tender for filing proper special pleas by the 30th of November, on which day defendant filed an account of set-off, and tendered several special pleas in writing, to the filing of each of which plaintiff objected on the ground that it is not sufficient in law, which objections, being argued, were sustained by the court, and said plea's rejected, to which ruling of the court defendant excepted, and tendered its bills of exceptions, numbered one to seven, inclusive, which were signed and made part of the record. And on the 10th day of Februarjr, 1896, a jury was impaneled and duly sworn to try the issue,, and on March 10th returned a verdict for plaintiff for two thousand three hundred and sixty dollars and sixty-seven cents damages, the aggregate of principal and interest to that date, when defendant moved the court to set aside the verdict of the jury and grant a new trial, and also moved in arrest of judgment, which motions the' court took under advisement; and on the 23rd of May, 1896, defendant filed assignments in writing of its grounds in support of said motions, which assignments are substantially the same as those contained in its petition for writ of error, and also filed the separate affidavits of Philip Neuliart and Bari Barr in support thereof; and said motions, being argued, were overruled, and judgment entered on said verdict, to all of which rulings of the court defendant excepted. The following are the affidavits of Neuhart and Barr, referred to as filed, and also the following agreement signed by counsel touching the same matter:
“Earl Barr, after being duly sworn, upon oath says that he was page of the court in which the case of W. H. Chapman v.*4 J. W. Beltz & Sons Co. was tried at the last term of the circuit court of Ohio County; that while the jury in that case was in its room, trying to reach a verdict, and the day before it rendered its verdict in the case, one of the jurors in the case, Isaac Simms, came out of the jury room, and was then intoxicated, and staggered in the presence of the affiant and several other persons, and looked like a drunken man.”
“Philip Neuhart, being duly sworn, says that he was one of the janitors of the court house in which the case of W. H. Chapman v. J. W. Beltz & Sons Co. was tried at the last, term of the circuit court of Ohio County; that after the jury in that case had gone to its room, and had been out for a day or so, and the day before it returned its verdict into court, ho saw one of the jurors, whose name was Isaac Simms, out In the hall, near the jury room, in a state of intoxication. The juror was plainly intoxicated, for he staggered in the presence of the affiant, and his appearance was that of a drunken man. At the time last named the jury was in its room for the purpose of considering its verdict. While the jury was trying to reach a verdict in its room, just across the hall of the court building, in the water-closet that had been used frequently by the jury, affiant found eight empty beer bottles, and a quart bottle that had had whisky in it.”
“It is agreed by the parties that the facts relating to the conduct of the juror, Isaac Simms, in addition to those stated in the affidavits of Earl Barr and Philip Neuhart, are as follows: While the jury were considering their verdict the fact that said Simms was intoxicated was brought to the attention of the judge of the court, as well as to the attention of counsel on both sides. With the assent of the counsel on both sides of the case, the jury was adjourned over until the following dajr, when said Simms appeared apparently sober, and, with the other jurors, was sent to the jury room. lie continued sober, so far as could bo ascertained, until the jury brought in its verdict as in the record is set forth. At no time prior to the bringing in of the verdict was any objection or motion of any kind, based on the conduct of the said Simms, made by either party to the case. It is further agreed that these facts may be considered by the court on the motion for a new trial made by the defendant, in like manner as though proved by affidavits.”
Bill of Exceptions No. 1: “Be it remembered that during the*5 trial of the above-entitled cause the defendant asked the witness J. R. Butts the following question: ‘Suppose that, under the circumstances and conditions named to you in the thirtieth question, when the front wall of the Chapman building was completed to a point about halfway between the third and fourth stories, and the girders and other .supports of the rear wall, which was not to be of brick, but of glass, had been placed in position, and the party wall had been built to about the top of the fifth story; the first floor had been relaid with new boards, and the second and third floors had been laid, and the timbers and sheeting of the new roof were in position; and while the old roof was still on the building, near the place where the fourth floor was to be, the Hutchinson building should suddenly separate from the Chapman building, and move southward for a short distance, and then the upper portion of the Hutchinson building should come back and sink in, and the Chapman building should also fall, what, in your opinion, would be the cause of the fall of the buildings ?’ To the asking of which question the plaintiff objected, and the court sustained said objection, and refused to allow said question to be answered, to which action of the court the defendant then and there excepted. The defendant, to prove its set-off in said cause, at the trial thereof made the following offer: ‘Defendant offers to prove that the following articles before the time of the collapse of the Chapman building had been got ready and prepared for use in said Chapman building, which were still at defendant’s place of business, in pursuance of the contract between the plaintiff and the defendant: 4 circular head box frames and sash; 2 lights, 30x36, to the value of twenty-eight dollars; 4 blank frames, nine-inch wall, and sash; 1 light, 36x70, valued at sixteen dollars; 3 box frames and sash; 4 light, 28x40, thirteen-inch wall, value of eighteen dollars; 3 box frames, 4 light, 28x36, with transoms, twenty-five dollars; 4 box frames and sash, 2 lights, 30x44, with remsom, value twenty-six dollars; 1 open front for rear, value twenty-four dollars and seventy-five cents; 4 large frames and sash, -88x96; 4 pivots, valued at forty-eight dollars. The defendant will further offer to prove, as to these items last mentioned, that they were valueless and of no use to the defendant after they had been cut and prepared for the plans of that building, and that since the collapse of said building the defendant has made no use, nor could have made any use, of said items.’*6 To which offer the plaintiff objected, and the court sustained said objection, to which action of the court the defendant then and there exempted, and asked that this, its bill of exceptions No. 1, might be signed, sealed, and made part of the record, which was accordingly done.
“John A. Campbell. [Seal.]”
Bill of Exceptions No. 2. “Be it remembered that upon the trial of the above-entitled cause, and before the jury retired to consider their verdict, the defendant asked the court to give the following instructions: ‘Defendant's instruction No. 10: The court instructs the jury that if they believed from the evidence that the collapse of the Chapman building occurred by reason of any fault or negligence of W. H. Chapman, or by reason of any fault or negligence of W. H. Chapman and T. T. Hutchinson, then they cannot find for the plaintiff. Defendant's instruction No. 11: The court instructs the jury that if they believe from the evidence that before and at the time of the collapse of .the Chapman building the defendant was doing its work on said building according to the plans and specifications prepared by the architects of said Chapman, and further believe that the said collapse was due to any act or fault of the said Chapman or his architects while acting for him within the scope of their employment, then the jury cannot find a verdict for the plaintiff, even though they may believe that the said collapse was due to the insufficiency of the said party wall, and that the defendant knew, of might have known by the use of reasonable care and diligence, of such insufficiency. Defendant's instruction No. 12: The court instructs the jury that if they believe from the evidence that the continued existence of the portions of the Chapman building on which the defendant was doing its work under the contract in evidence was necessary for the completion of said work under said contract, and further believe that before the completion of said work the said portions of said Chapman building on which said work was being done as aforesaid collapsed, and carried with them the work that had already been done by the defendant on said portions, and that said portions were thereby destroyed, then they cannot find for the plaintiff, even though they may believe that said collapse occurred without any fault on the part of the said plaintiff or defendant.' But the Court refused to give said instructions.
“And the plaintiff asked the court to give the following in*7 structions: ‘Plaintiffs instruction No. 1: In order that the plaintiff should recover, it is not necessary that the jury should ascertain either that the defendant was negligent or that T. T. Hutchinson was negligent. If the fall and destruction of the building was not due to the negligence or default of the plaintiff or his architects, then the plaintiff is entitled to recover, without regard to the negligence of either defendant or Hutchinson. Plaintiffs instruction No. 2: If the jury believe from the evidence that the proposition which has been introduced in evidence was accepted by the plaintiff, and that a contract was thus made in accordance therewith, and if they further believe from the evidence that the building referred to in the contract fell while the defendant was engaged in doing work upon it in the course of the performance of the contract,-then the plaintiff is entitled to a verdict, unless the jury further believe from the evidence that the plaintiff or his architects had been negligent in the performance of, or in the failure to perform, some duty- which ought to have been done by them. Plaintiff's instruction No. 3: The court instructs the jury that the question of Mr. Hutchinson’s negligence is not involved in this case. Plaintiff’s instruction No. 4: If the jury believe from the evidence that the proposition which has been introduced in evidence was accepted by the plaintiff, and that a contract was thus made in accordance therewith, and if they further believe from the evidence that the defendant under the said contract began the work therein provided for, and that before it had completed the same the building fell, without any fault or negligence of the plaintiff or his architects, then, although the defendant may not itself have been at fault, the plaintiff is entitled to recover the two thousand dollars paid by him to-the defendant on March 23, 1895, with interest thereon,as well as. any other damages which, as appears by the evidence, were suffered by the plaintiff by reason of the defendant’s breach of its contract. Plaintiff’s instruction No. 5: Hnless the jury believe from the evidence that the fall and destruction of the building which was the subject of the contract between the parties was due to some act or default or negligence of the plaintiff or his.architects, the jury will not consider the set-off claimed by the defendant, and the verdict of the jury should be for the plaintiff. Plaintiff’s instruction No. 6: The right of the plaintiff to recover is not prejudiced or affected by the fact that during the progress of the work, and on the certificate of the architects,*8 'he made a partial payment of two thousand dollars; but, on the other hand, if the jury find for the plaintiff, their verdict shall include the said amount of two thousand dollars, with interest, as well as any other damages suffered by the plaintiff by reason of the defendant’s breach of its contract. Plaintiff’s instruction Ho. 1: The jury are instructed that under the contract in evidence the defendant was bound to use proper care and diligence in bracing and securing the work against accident. Plaintiff’s instruction ISTo. 8. If the jury believe from the evidence that the proposition which has been introduced in evidence was accepted by the plaintiff, and that a contract was thus made in accordance therewith, and if they further believe from the evidence that the defendant began under the said contract the work therein provided for, and that, before it had completed the same, the building fell, without any fault or negligence of the plaintiff or his architects, then the defendant, although it may not have been at fault, is not entitled to recover from the plaintiff any part of the set-off which. it claims, and the jury shall disregard such set-off.’ To which instructions the defendant objected, but the court overruled said objection, and gave said instructions, to which actions of the court the defendant then and there excepted, and asked that this, its bill of exceptions Up. 2, might be signed, sealed, and made part of the record, which was accordingly done.
“The court also gave, at the instance of the defendant, and over the plaintiff’s objection, the following instructions: “Defendant’s instruction Ho. 1: The court instructs the jury that if they believe from the evidence that while the defendant was doing the work which it had contracted to do in remodeling the building of W. H. Chapman, spoken of in evidence, and that before said work was completed the portions of the party wall of the Chapman building, upon which said remodeled building was being erected, collapsed and fell by reason of the insufficiency of said wall to support said improvements, and carried with them the improvements aforesaid, then the plaintiff cannot recover in this case. Defendant’s instruction Ho. 2: The court instructs the jury that if they believe from the evidence that the continued existence of the portion of the Chapman building on which the defendant was doing its work under the contract in evidence, as the substructure on which such improvements were to be remade or remodeled building was to be*9 erected, was necessary for the' completion of said work under said contract, and further believe that before tbe completion of said work the said portions of said Chapman building on which said work was being done as aforesaid- collapsed, and carried with them the work- that had already been done by the defendant on said portions, and that said portions were thereby destroyed, and they further believe from the evidence that said collapse was caused by the insufficiency of said substructure, then they cannot find for the plaintiff in this case. Defendant’s instruction No. 3: The court instructs the jury that, if they believe from the evidence that the collapse of the Chapman building occurred by reason of any fault or negligence of W. H. Chapman, they cannot find for the plaintiff. Defendant’s instruction No. 4: The court instructs the jury that if they believe from the evidence that the collapse of the Chapman building occurred by reason of any fault or negligence of the architects of W. H. Chapman, and that such fault or negligence occurred while said architects were employed by said Chapman, and while they were acting within the scope of their employment as such architects, the jury cannot find for the plaintiff. Defendant’s instruction No. 5: The court instructs the jury that if they believe from the evidence the collapse of the Chapman building was due to any fault or negligence of the architects of W. H. Chapman, who prepared the plans and specifications for the improvements of said building, and superintended said work, and that such fault or negligence occurred while said architects were acting for said Chapman, and within the scope of their authority as such architects, then the fact that W. II. Chapman' may have selected competent architects, and relied on their judgment, does not relieve him from liability in this case. Defendant’s instruction No. 6: The court instructs the jury that, even if they believe from thé evidence that before W. H. Chapman contracted with the defendant for the improvements on his building, he consulted his architects about the party wall spoken of in evidence, to determine whether it could sustain the said improvements, and further believe that said architects told said Chapman that said wall would sustain said improvements, and prepared plans and specifications for said improvements for said Chapman, yet if the jury believe from the evidence that said party wall was insufficient to sustain said improvements, and the work done on said wall under*10 said plans and specifications, and they further believe that by reason of such insufficiency such party wall gave way and caused plaintiff’s building to collapse and fall, then the plaintiff is not relieved from liability by reason of the fact that he consulted with and relied on the statements of his architects. Defendant’s instruction No. 7: The court instructs the jury that if they believed from the evidence that the collapse of the Chapman building occurred by reason of any fault or negligence of W. H. Chapman or his architects, while acting for him within the scope of their employment, the fact that the said Chapman offered to restore the said building to the condition in which it was at the time the defendant began its work, and requested the defendant to again go on with its work, does not entitle the said Chapman to recover in this case, nor relieve him from liability to pay the defendant for all labor and material furnished by the defendant on said improvements up to the time of said collapse, which have not been paid for by said Chapman. Defendant’s instruction No. 8: The court instructs the jury that any knowledge that they may believe that the president of the defendant company or any employe of the defendant company may have had as to any defect of the party wall spoken of in evidence^ at the time of the Hutchinson improvements cannot be considered by the jury in this case for any purpose whatever. Defendant’s .instruction No. 9: The couid instructs the jury that, if they find for the defendant, they must then determine from the evidence how much, if any, of the defendant’s set-off has been proven and remains unpaid, and render a verdict in favor of the defendant for the amount so proven, with interest upon each item proven at the rate of six per cent, per annum from the time such item became due.’ To the giving of each of which the plaintiff excepted.
“The plaintiff also moved the court to give the following instructions: ‘Plaintiff’s instruction No. 9: Upon the uncontroverted facts in this case, the plaintiff is entitled to recover, and the jury are instructed to find for the plaintiff for the amount of the damages which the jury may believe from the evidence the plaintiff suffered by reason of the defendant’s breach of corn tract. Plaintiff’s instruction No. 10: Under the accepted proposition which has been introduced in evidence, the plaintiff, W. H. Chapman, did not become a guarantor to the defendant of the sufficiency of the walls or substructure of his*11 building for tbe purpose of sustaining the improvements. If, therefore, the jury believe.that the falling of the building was caused by the insufficiency of such walls and substructure, and that the plaintiff neither knew of such insufficiency, nor himself did anything to cause such insufficiency, then the jury should find against the said defendant with respect to its set-off, and in favor of the plaintiff for the two thousand dollars paid by the plaintiff to the defendant on March 23, 1895, with interest from the - day of April, 1895, the date of the defendant's letter refusing to proceed with the work,' together with such other damages as the evidence may show to have been suffered by the plaintiff by reason of the defendant’s breach of its contract.’ But on the defendant’s objection the court refused to give these two instructions, and the plaintiff excepted.
“John A. Campbell. [Seal.]”
Bill of Exceptions No. J¡.: “Be it remembered that upon the trial of the above-entitled cause the plaintiff introduced certain evidence to support its claim for removing certain debris from plaintiff’s ground, and also to support its claim for being deprived of the use and occupation of said ground by the defendant after the collapse of plaintiff’s building, all of which evidence appears in defendant’s bill of exceptions No. 5. To the introduction of all of which evidence the defendant then and there objected, but the court overruled said objection, and permitted said evidence to go to the jury, to which ruling and action of the court the defendant then and there excepted, which objections and exceptions are set forth in bill of exceptions No. 5, and asked that this, its bill of exceptions No. 4, be signed, sealed, and made a part of the record, which was accordingly done.
“John A. Campbell. [Seal.]”
Bill of exceptions No. 5 sets out all the evidence given to the jury in the case, to such portions of which as may be necessary reference will be made hereafter.
From the judgment of the court the defendant obtained a writ of error, assigning the following errors: “(1) In overruling the demurrer of the defendant to the declaration in said cause. (2) In the action of the judge who tried said cause in directing and permitting the witness Joseph Seybold to take the position in the Bank of Wheeling while the jury was viewing, said bank:, which he, said Seybold, claimed to have occupied in
The principal question involved in this case, in my opinion, turns upon the demurrer to the declaration. Can either party recover against the other ? Can the appellee' recover upon his declaration, or was the demurrer properly overruled? The declaration is based upon the following proposition made by defendant in writing, and filed as Exhibit A, with the deposition of Elmer E. Chapman: “J. W. Beltz & Sons’ Co. Wheeling, West Virginia, Dec. 29, 1894. Mess. Eranzheim, Geisey & Earis, City — Gentlemen: We propose to build store building for W. H. Chapman & Sons, as per plans and specifications prepared at your office, for the sum of six thousand fifty-nine and 00-100 dollars ($6,059.00). If addition in rear is left off, for the sum of five thousand five hundred thirty-two and 00-100 dollars ($5,532.00). Respectfully submitted. J. W. Beltz &
The second count of the declaration sets out the contract, and the payment by plaintiff of two thousand dollars on account of the contract price, and avers that on the 9th of April, 1895, while the defendant was in the performance of the contract, and while a large portion of the work yet remained to be done, and a large part of the materials to be furnished, the building, being then only partly finished, collapsed and fell, and was partially destroyed, and that part of the work and materials which had been done and furnished by defendant thereby became and remained of no value to plaintiff. It is averred that the collapse was not due to any act or default of plaintiff, and that it was not due to any unprecedented or extraordinary action of the elements, such as is usually designated an “act of God.” Then follow the averments of defendant’s failure to further perform its contract, and the consequent damage to plaintiff. Plaintiff avers that he notified defendant in writing on the 13 th of April, 1895, and within a reasonable time after the collapse of the building, that he (plaintiff) expected to restore the original part of his said building to the condition in which it was when the defendant began the improvements to it, and thereby required the said defendant, when such restoraton should have 'been completed, to make, and complete the said improvements in accordance with the terms of thes aid contract, and that two days after said notice, on April 15, 1895, the defendant notified plaintiff in writing that it would insist that there was no obligation upon it to restore or complete the improvements on said building, and that although a reasonable time for the completion of said improvements, and for the performance by defendant of its contract, had long since elapsed before the bringing of this suit, yet it had wholly failed and refused to proceed further with the performance of the contract, and had retained the said two thousand dollars, and refused to restore it to plaintiff. Defendant contends that under the ruling in Kern v. Ziegler, 13 W. Va. 707, it was not sufficient for plaintiff to aver that he notified defendant in writing that he “expected to restore the original part of said building to the condition in which it was when the said defendant began the improvements to it, and thereby required the said defendant, when such restoration
Second assignment, — -that it was error to permit witness Joseph Seybold to take the position in the Bank of Wheeling while the jury was'viewing said bank, which he, said Seybold, claimed to have occupied in said bank when the collapse of the building occurred:
This assignment is based on bill of exceptions Ho. 3, which shows that during the trial, on motion of plaintiff A counsel, in Avhich the defendant’scorinscl joined, the jury were taken into view the place where the collapse of the buildings occurred, and also some other buildings that some of the witnesses had referred to in their testimony; that among the places visited was-the Bank of Wheeling, on the inside of which Joseph Seybold, a witness for plaintiff, who had already been examined and cross-examined in the trial, had testified that he was standing at the time of the collapse. While the jury were in the bank, one of the attorneys of defendant took a position in said bank about twenty feet from
The third assignment is based on the first part of bill of exceptions No. 1, — the refusal of the court to permit the hypothetical question therein contained to be asked and answered by the witness .T. B. Butts. The question No. 30, referred to in the bill, as to what the effect, in witness’ judgment, certain things done to the wall would be upon the walls, was permitted to be answered by the witness, who said it would weaken the wall to some extent, but could not say to what extent. In this answer witness stated all he knew of the effect it had upon the wall,
The fourth assignment refers to the same bill of exceptions, and relates to offsets filed by defendant for materials furnished and labor performed, as well as for materials prepared for the building, but which had not been placed in the building op delivered on the ground. It is clear that if plaintiff has a right of action against defendant for breach of its express contract, in failing to furnish the materials and work and complete the building to the extent that it contracted to do, defendant cannot prove offsets under the express contract, which it does not claim to have performed in full. This whole question is settled in the overruling of the demurrer to the declaration, the plaintiff having elected to restore the building to the condition it was in when defendant commenced the improvements; and the defendant, having repudiated its contract to complete the work under the contract, cannot offset part performance of the violated contract against plaintiff’s damages. Appellant cites Rawson v. Clark, 70 Ill. 656, in support of its position, in which case certain iron was to be manufactured and placed in a building by the appellee, and after the iron was prepared and partly delivered, and appellee ready to put it in place, the building was burned without fault of either party. The court says in its opinion (page 658), “The
The fifth, sixth, and seventh assignments are all founded on bill of exceptions No. 2, relative to the giving and refusing of instructions, which bill of instructions is hereinbefore set out in extenso. Instructions of defendant Nos. 10 and 12 were properly refused: No. 10, because it is so constructed as to probably make the plaintiff liable, in the minds of the jury, for the neglect of a third party, —one who has no connection with the case in any manner whatever. No. 12 raises the same questioii which is passed .upon in the demurrer to the declaration. Instruction No. 11 is fully covered by, defendant's instructions Nos. 3 and 4, except as to the words at the end of No. 11, “and that the defendant knew, or might have known by the usé of reasonable care and diligence, of such insufficiency,” and this part of the instruction is covered by defendant's instruction No. 8. Both the last clause of No. 11 and instruction No. 8 were not proper to be given. Defendant was a builder, and if it, by its president or agent, knew of a defect in the party wall rendering it insufficient to support the building contracted by it to be built to such wall, defendant's duty was to point out to plaintiff such defect and insufficiency;'and if it contracted to erect such building, with such knowledge, without so calling attention to it, it should not be permitted to take advantage of it on the failure of the wall. It is contended by appellant that plaintiff’s instruction No. 1 is erroneous, because it is inconsistent with defendant’s No. 1, which had been given; that the latter ignores the idea of any fault or negligence of either plaintiff or defendant, and made the case turn wholly upon the insufficiency of the walls, — and says: “And yet, right in the face of this instruction, the court
Ninth assignment, — that the court erred in not setting aside the verdict and granting a new trial on account of the errors before assigned, and also on account of certain misconduct of
As to rejection of special pleas tendered by appellant, no complaint is made, because “all the matters arising under them were permitted to go to the jury,” as stated by appellant. For the reasons herein stated, the judgment is reversed, the verdict set aside, and the case remanded for a new trial to be had therein.
ON REHEARING.
After the opinion in this case was handed down, the appellee asked and obtained a rehearing; claiming .especially that this Court erred in holding that it was error in the circuit court to permit evidence to go to the jury in favor of plaintiff to prove the cost of removing the debris from the ground after the collapse of the building. The letters which passed between the parties are reférred to as establishing the fact that the debris referred to as being removed was the property of defendant; and plaintiff says, “The case is a simple one of one man depositing his personal property upon a lot of land belonging to another, and refusing, upon request to remove it.” This material was lawfully placed on the premises by the builder, and it is conceded that the collapse of the building was without the fault of defendant, as well as of the plaintiffs; and the evidence shows that the debris was composed of the substructure and superstructure, in one confused mass. The plaintiff offered to furnish a new substructure, and the removal of the debris was necessary for them to get it out of the way, to prepare the sub
Modified and Affirmed.