88 W. Va. 281 | W. Va. | 1921
The judgment for $8,537.39, under review on this writ of error, was recovered in an action of assumpsit, as part of an amount claimed under an alleged modification of a logging contract fully performed by both parties, the work having been fully done and fully paid for, except in so far as this claim has been asserted upon the theory of a modification of the contract, allowing increased compensation to the contractor. In his declaration, the plaintiff demanded $10,-636.84, and the defendants interposed a claim for $18,481.48, by way of recoupment and set-off. The basis of this counter claim is an alleged overpayment for the work done, at the contract price. Nine of the fifteen assignments of error are based upon the overruling of motions of the defendants to strike out evidence and their objections to admission of evidence. Some of these, as well as the thirteenth and fourteenth assignments, the former based upon the rejection of peremptory instructions asked for by the defendants and the latter, upon the motion to set aside the verdict, involve the sufficiency of evidence. The twelfth relates to rulings upon instructions given.
For the purposes of the stocking of the timber involved here, which was taken from a 3,500 acre tract of land known as the “Clark and McCullough Tract,” and amounted to about 33,833,361 feet, the parties verbally agreed, April 2, 1915, or near that date, that a written contract between them dated, April 1, 1912, under which the plaintiff had stocked the remaining portion of timber on a 10,000 acre tract owned by the defendants, known as the “Hoffman Tract,” and lying on the opposite side of the Greenbrier River from the “Clark and McCullough Tract,” should govern and control their rights and duties, in the cutting and logging of the timber here involved, except in two particulars. The written contract had provided for payment of $4.75 per thousand for the spruce timber and $5.00 per thousand for the hardwood timber; and it was agreed that these prices should be increased $1.00 per thousand, making
Under the agreement thus made, it was the duty of the plaintiff to deliver the logs within 75 feet of the railroad tracks as constructed by the defendants. Before it was entered into, the defendants indicated the extent and locations of the railroad tracks they éxpected to construct. Lying along the northwestern side of the Greenbrier River, the tract of land was penetrated by four small streams, hollows or ravines, known as the Arbogast, Reservoir, Waybright and First Run. Railroads were to be and were built up those hollows from the main line running along the river. A part of the timber lay in the head of another hollow known as Bear Wallow Hollow, which came to the river on an adjoining tract known as the “Boggs Tract.” The timber in that hollow could not be logged down the hollow otherwise than by passing over the Boggs land. No railroad was constructed up that hollow, wherefore the timber therein was hauled over the ridge and brought down what is known as First Run Hollow. It amounted to a little over 2,000,000 feet and compensation for the logging thereof is the subject matter of the alleged modification of the contract and this action. The plaintiff contends his contract was made in view of clearly manifest purpose and intent on the part of the defendants, to obtain a right of way through the Boggs land and con-. struct a railroad up Bear Wallow Hollow.to which he was to deliver timber standing at the head or on the side thereof, and that his agreement based upon that assumption, imposed duty upon the defendants to construct it. He claims that, later, they attempted to obtain a right of way over the Boggs land, but, disagreeing with the owners thereof as to
The defendants are partners doing business under the firm name and style of George Craig & Sons, and the firm is composed of George F. Craig, John A. Calhoun and A. J. Cadwal-lader. For many years, perhaps from the beginning of its operations, the firm’s timber business has been managed by George F. Craig. He claims to have made the contract involved here with the plaintiff. On the other hand, the plaintiff contends that George C. Craig, son of George F. Craig, under authority duly conferred upon him, or under circumstances justifying plaintiff’s reliance upon his agency, made the contract and afterwards modified it as aforesaid. The defendants deny the agency of George C. Craig and right in the plaintiff to rely upon such agency, and also the making of the alleged modification by George C. Craig and any attempt by him to make it.
The firm’s principal office was .in Philadelphia in which city George F. Craig, as well perhaps, as the other members thereof, resided. At their large mills located in Pocahontas County, West Virginia, a village, called Winterburn, grew up, and they maintained an office there. They employed a bookkeeper, Arbogast, a woods foreman, J. W. Bratton, a head-sawyer, Weightman, and others. From 1907 until 1914,. George C. Craig resided there and was charged with certain duties in connection with the logging and mill operations. When he was first stationed there, he was a young man just
At the beginning of the transaction leading up to the Clark and McCullough enterprise, the firm did not own the timber on that tract and did not acquire title thereto until some time in April, 1915. Its situation being such that it could be conveniently logged to their Winterburn mills, they began investigations respecting it in 1914, according to the testimony of the plaintiff. He finished his contract for the logging on the “Hoffman Tract” some time in the fall of 1914, probably about September. He swears that, in November or December 1914, he and George C. Craig and J. W. Bratton, went over the Clark and McCullough land and made a rough estimate of the amount of timber thereon, for use in the firm’s deliberations upon the advisability of purchasing it; and that, in connection therewith, he was asked for the prices at which he would log the timber, by George C. Craig, and that, in response to the inquiry, he proposed to log it at the prices and under the arrangement hereinbefore stated. He does not say Craig agreed on that occasion, on behalf of the firm, to pay the prices he had named; but admits that he . told him he would report the proposition to the company. He .denies that there was any further conversation or discussion "with reference to the contract. George F. Craig admits that the plaintiff, Bratton and his son George looked over the timber, in a general way, in 1914. He also states that, on
George C. Craig admits that he went over the land with the plaintiff in November 1914, and took his offer to do the logging at the increased prices named and communicated it to his father. . He denies, however, that he made the contract and also that he had any authority to do so. Prom what has been stated, it is obvious that there is very little conflict in the testimony as to' the manner in which the contract was made. The parties differ in their testimony as to who made it on behalf of the firm, whether George C. Craig or George P. Craig. In other words, the plaintiff’s theory is that George C. Craig made it and reported it to his father, while the defendants claim he simply took and reported an offer which they, through George P. Craig, accepted, April 2, 1915.
Since there is no controversy as to the original contract,
There is sharp conflict in tbe testimony of tbe plaintiff and George C. Craig, as to what was said and not said, concerning tbe intention of tbe defendants to extend their railroad up Bear Wallow Hollow. They agree that they were in that Hollow and looked over the ground in November or December 1914. Tbe plaintiff says it was agreed between them, that tbe railroad would be built up to a point known as tbe Jess McLaughlin Camp, and that tbe land above that camp was too steep for further extension." Craig says tbe land was too steep from the mouth of the Hollow up to tbe camp. He further says he ascertained the grade by means of a lock-level and informed tbe plaintiff that tbe road could not be so extended. This, tbe latter flatly denies, saying no levels were taken, that the grade ■ was not ascertained and that it was not steeper than other places on which roads had been built under tbe old contract. Another witness swore tbe grade was not over 6%, nor as steep as other grades on which railroads were built under the contract. The plaintiff’s testimony conflicts also with that of George.F. Craig, as po what he said about the building of the road. The latter says he was on the Boggs land in the spring of 1916, and then told the plaintiff the road would not be built. This the former positively denies. This testimony conflicts with his son’s, for it proves the building of the road was contemplated and the purpose not abandoned until the spring of 1916. Moreover, he did not say he declined to build on account of tbe grade. His testimony indicates a decision on account of the length of the road. He does not claim to have been in the hollow
The circumstances attending the negotiations resulting in the contract for the building of the railroads, are relied upon by the plaintiff, as tending to prove intent and purpose on the part of .the defendants to extend the road to the McLaughlin Camp. They were constructed by a firm known as Notarianni and Aiello, under a contract dated, April '3, 1915, which did not specify the locations of the roads to be built. It provided in general terms for the construction of about six miles of railroad, at $2,000.00 per mile for grading and $525.00 per mile for track laying and surfacing. The pros
Aiello testifies that when they came to that dine, in the construction of what is called the river line railroad, in May or June, 1915, Bratton, the woods foreman, came to them and ordered them to stop at that point, saying they were unable to secure a right of way through the Boggs land. George C. Craig admits that, in May or June of that year, he saw one of the owners of the Boggs land and negotiated with him for some timber thereon, not particularly for the right of way, and that he saw him; only once, and on the road between Winterburn and Franklin. He also admits that there was some correspondence concerning the matter. The plaintiff says that, in June, 1916, Boggs and George C. Craig had an interview respecting the right of way, at Winterburn, and that Craig expressing disgust at the conduct of Boggs, had said he could not do anything with him, which meant, or may have meant, that he was unable to obtain a right of way from him. Thereupon, the plaintiff, according to his testimony, proposed to put the logs over the ridge, if the defendants would give him what the railroad would cost, and Craig replied: “If you will put them over the hill, we will pay you what the railroad would cost, and if it costs more, we will pay you.” As has been stated, George C. Craig expressly denies this and, of course, if the agreement was not made, it was never reported by him. George F. Craig admits negotiations with Boggs for the timber and for a right of way, prior to July, 1915. He offered $600.00 and Boggs wanted $1,000.00 which he was unwilling to pay. Notwithstanding the failure thereof, in May or June 1915, while- the railroad contractors were still there, George F. Craig, as has been
There is no claim on the part of the plaintiff that his alleged agreement of modification was ever brought to the attention of George F. Craig, by him, in any way, until after the completion of the work, and the latter denies that it was. He specifically states that neither the plaintiff nor his son, George C. Craig, ever mentioned the matter to him. It was brought to his attention, however immediately after the work was completed by a letter dated, May 7, 1917, acknowledging receipt of a check for the balance due. In that letter, the plaintiff said: “When George C. is at home you can write me and I will come over and we can settle the Run hauling,” by which he admittedly meant the Bear Wallow Hollow hauling. The suggestion of this claim, so made, does not seem to have occasioned any surprise on the part of the defendants, for, on May 11, 1917, plaintiff was invited to come, after having given a few days notice of the time of his arrival. At that time, nothing was said about the counter claim of the defendants which later became a subject of negotiations. Between that date and February 20, 1919, the date of the rejection of the plaintiff’s claim, he made two or three trips to Philadelphia, in an effort to obtain an adjustment of the matter. Craig knew in a general way, what the plaintiff claimed, but says he was not informed as to the real basis of it until the occasion of the last trip. Cochran says the Craigs were evasive and avoided a settlement. They deny this, but a jury might well say they manifested no purpose to allow his claim without abatement and yet that they did not reject it. In December, 1917, they introduced into the ne
As matter tending to refute the good faith of the plaintiff’s claim and contradict or negative the inferences arising in his favor from circumstances, the defendants invoke the monthly settlements and payments, and the final settlement and payment, without mention, until the receipt of the last check, of the claim now asserted. Uncertainty of the basis of his claim, or lack of full .disclosure thereof, is also relied upon. George F. Craig swears he was not informed as to the exact nature thereof, until the last interview between them was held, though he admits he knew something additional or extra was claimed and discussed. In the last interview, he says what the railroad would have cost was claimed and $5,000.00 or $6,000.00 indicated as the amount. He admits that he neither admitted nor rejected the claim when asserted, but he says he told the plaintiff he would get the boys, including plaintiff’s son, together and take up the proposition “asa whole and do whatever was right about it, ’ ’ evidently meanting both claims. It it said the claim for full reimbursement for the cost of taking the timber out over the ridge, whether it exceed what the railroad would have cost or not, is an afterthought and was never disclosed until 'this action was commenced. The basis of his claim as set forth in a letter written b^ his attorney, February 18, 1919, was limited to what the railroad would have cost.
George C. Craig was clearly an agent of the defendants. He was clothed with some authority. As the extent thereof was not defined by any written instrument and had not been otherwise clearly stated, it depended upon the facts and circumstances known to the plaintiff and the defendants. In the transaction here involved, he was sent to the scene of the operations frequently and upon important missions, and apparently had considerable authority, as clearly ap
The overruling of a motion to strike out all of the plaintiff’s evidence, made at the conclusion thereof, is assigned as error. As the defendants afterward introduced their evidence they waived the error in the overruling of the motion, if any. Trump v. Tidewater etc. Co., 46 W. Va. 238; Core v. Ohio River R. Co., 38 W. Va. 456.
Evidence of what it would have cost to build the railroad in question was objected to on the ground of insufficiency, abandonment of right to recover on that basis, possibility that such cost might have exceeded the cost of the work, and representation that the claim was for only four or five thousand dollars. The objection was properly overruled. The contract price per mile of the road built, except as to bridges, the length of the road, and a substantial increase in wages and the cost of materials between 1915 and 1916 were proved. Though this evidence did not fix a definite sum as the cost, it reasonably and fairly proved a large sum of money entering into the cost, and the plaintiff could not be denied right of recovery, on the ground of inability to prove the entire or exact amount thereof, if he made good his claim of a contract. It is immaterial that what the railroad would have cost might have exceeded the cost of the logging. If the contract was made as claimed, the plaintiff was entitled to recover it, nevertheless. There was no abandonment of this claim. Assertion of 'the alternative claim is not inconsistent with adherence to it, if that would be material. The law does not compel a plaintiff to elect at his peril between alternative claims. He may assert both, leaving it to the jury or court to say which he is entitled to. There is no element of estoppel in the representation that the claim
An objection to evidence of the additional cost of logging the timber over the hill, on the ground of lack of a claim of right to recover on a quantum meruit, overlooks the presence of the common counts in the declaration and the legal proposition that deviation from the contract admittedly made, by an alternation of the character of the work, after it was made, greatly increasing the cost thereof, may have conferred right of recovery on that basis. Besides the evidence tending to prove the alleged modification of the contract, there is an abundance of evidence tending to prove the admitted contract was entered into upon a representation of purpose and intent to build the railroad in question, and in reliance upon previous interpretation of the adopted written contract, as to the duty of the defendants, respecting the building of railroads thereunder. It suffices at this stage of the opinion, to note the presence of such evidence. The question of its sufficiency comes up later.
Aiello’s opinion that the cost of building the road in 1916 would have been 50% or 60% more than in 1915, was clearly admissible, notwithstanding he had done no construction work in West Virginia in 1916. That circumstances went to its weight, not its admissibility. As a contractor, he was familiar with general commercial and industrial conditions. A witness need not be qualified in the highest degree, nor in any particular degree, to make his opinion on a question of value or quantity admissible. Comstock v. Droney Lumber Co., 69 W. Va. 100. It suffices that he has some peculiar qualification, more knowledge of the subject than jurors are supposed ordinarily to have.
Nor was the plaintiff’s statement that he would not have taken the contract at the prices agreed upon, if he had not understood the road was to be built, inadmissible. Though in the nature of self-serving evidence, it was not an extra judicial declaration. It is part of his testimony, laying emphasis upon what he claims to have been a part of his con
Coming now to the rulings on instructions, it is necessary first to dispose of a contention on the part of the defendant in error, that the instructions were not made part of the bill of exceptions. Indeed, it is insisted upon highly technical and unsubstantial grounds, that there is no bill of exceptions. It would subserve no good purpose to analyze and refute this argument by demonstration and authority. A paper containing all of the evidence, motions, rulings thereon and the instructions, and styled “Defendant’s Bill of Exceptions,” was certified by the trial judge, as a bill of exceptions, and a vacation order makes it a part of the record. That is sufficient. In that paper, the instructions are copied, with the objections, exceptions, rulings and the initials of the judge, written on them. .These are referred to in the judge’s certificate in these words: “being the exceptions to the rulings and actions of the court in the progress of the trial, as shown above and above set out.” These words refer to everything that precedes them, in so far as they are applicable, and they are obviously applicable to the endorsements on the instructions copied in the paper. Those' endorsements record objections, rulings and exceptions.
The correctness of only one of the two instructions given for the plaintiff is questioned. It submitted to the jury the question of George «0. Craig’s agency and the issue as to whether he had made the alleged agreement and directed them, in the event of their finding for the plaintiff on those issues, to return a verdict in his favor and assess his damages at such sum as the evidence, in their opinion, warranted, but not to exceed the amount claimed in the declaration. It was a binding instruction and wholly ignored the issue as to the claims asserted by the defendants, by way of recoupment and set-off. The evidence adduced in support of these claims had a clear tendency to sustain them. Whether they were valid was a question for the jury in the first instance, as were all other issues in the case. The defendants claim the amount of lumber sawed from the logs should have ex
If we could say the plaintiff had clear right to recover on the claim set up by him, that would not preclude the possibility of right in the defendants to part or all of their claim asserted against him. Nor can it be said the instruction did not literally require a verdict for the plaintiff on the whole case, if the jury were satisfied of the agency of George C-Craig and the making of the alleged agreement, and that necessarily precluded allowance of a large part of the claim of the defendants, which was nearly double that of the plaintiff. It was not in terms limited to the plaintiff’s claim. In express terms, it hypothetically required a finding for the plaintiff on the whole case, but the vice of it was its failure to exclude the claim of the defendants -in the hypothetical statement. If the set-off was valid in toto, there could have been no verdict for the plaintiff.
Such an instruction is erroneous and presumptively prejudicial. Wiggin v. Marsh Lumber Co., 77 W. Va. 7; Stuck v. K. & M. R. Co., 78 W. Va. 490; Snider v. Robinet, 78 W. Va. 88; Petry v. Cabin Creek etc. Co., 77 W. Va. 654. It is not justified by the principle or rule enunciated in Leros v. Parker, 79 W. Va. 700. In that case, the instructions submitted conflicting contentions to the jury, hypothetically. Inconsistency in the theories advanced in them was relied upon as vitiating them. Here only one side has
Exceptions were taken to the refusal of two instructions offered by the defendant, each of which would have directed the jury to find against the plaintiff, if given. They were properly refused. The contract as originally made between the parties was thoroughly informal. It verbally adopted the terms and provisions of a previous written contract between them, with two modifications as to prices. Under that contract, according to direct and positive evidence, railroads had been built by the defendants to such extent and in such manner as to bring them within reasonably convenient reach of the timber; when it was practicable to do so. As previously construed, it required the building of a railroad up the hollow in question. For about half of the distance, the grade was clearly not too steep, for a railroad had been operated on it. As to the balance of the distance, there is clear and positive evidence that the grade was not too steep. The jury could have found it was not. They could have found, also, that, when the plaintiff’s offer to do the work was made and accepted, whether accepted by George C. Craig or his father, construction of the road was contemplated. There is no pretence that intention to build it was abandoned earlier than the month of June, 1915, two months after the contract was made. The plaintiff, Bratton and George C. Craig had examined the location in 1914. In March, 1915, he had been directed to take the prospective contractors over it and he did so. Within a few days afterward, the verbal contract was made, and it was silent as- to the construction of that railroad as it was respecting the others. Presumptively, the defendants knew the plaintiff was basing his contract on his belief that they would build that road, and the jury could say they intended to accept the offer as he made it. He knew how the former contract had been interpreted and executed, in respect of the furnishing of railroad facilities, and had no reason to suspect that a different interpretation would be put upon it, or that it would be performed in a different manner. It is conceded that George C. Craig had supervising or administrative au
The material alteration made in their plans by the defendants, necessitating departure from the contract by the plaintiff, if so made, at great additional expense to him, imposed upon the former the legal duty of compensating him for his additional outlay in the execution of his contract as altered in performance, by reason of their change of plans. Fuccy v. Coal and Coke Ry. Co., 75 W. Va. 134; Henderson Bridge Co. v. McGrath, 134 U. S. 260; Woods v. Fort Wayne, 119 U. S. 312; Wolff v. McGavock, 29 Wis. 290; Salt Lake City v. Smith, 104 Fed Rep. 457.
Having thus demonstrated the propriety of the rejection of the peremptory instructions asked for and the overruling of the motion for a new trial, we deem it unnecessary to inquire whether these rulings can be justified upon any other
Failure to invoke the legal principle upon which the rejection of the peremptory instructions and the denial of a new trial are sustained and reliance upon other propositions, does not preclude application thereof. Litigation is .not, and ought not to be regarded as a contest presided over by the court and determinable by the skill of the actors, as in the case of a game. A correct ruling based upon a wrong or untenable reason should always be upheld, and, when the rights of the parties have been dealt with and results declared, upon inapplicable legal principles, so as to work deprivation of right or infliction of wrongs, the reviewing court, on discovery thereof, should correct the procedure and either adjudge the rights of the parties upon correct principles, or remand the cause, with directions to the trial court for procedure agreeable to such principles, unless some insuperable obstacle to such action has intervened, and that is our practice.
In our opinion, the conclusions here stated cover and dispose of all the assignments of error that have been relied upon in argument, and sufficiently define the principles involved for the purposes of further procedure.
For the error in the giving of plaintiff’s instruction No.
Reversed and remanded.