76 W. Va. 84 | W. Va. | 1915
Defendant was awarded this writ of error to an order setting aside the verdict of a jury found in his favor.
This action of debt was brought against him upon a renewal note for $1,000, given originally for ten shares of stock -in the Belington Brick Company, of the par value of $100. The note of which the one sued on is the last of a series of renewals, was made on the 19th of February, 1906. Defendant pleaded the general issue, and also filed a special plea duly verified, averring fraud in the procurement of the note, failure of consideration, and a guaranty by plaintiff that the stock would pay at least ten per cent, dividend. He also filed sets-off for the interest he had paid on the note at each renewal. Plaintiff replied generally, and on the issues thus joined, the jury found, in favor of defendant, the sum of $353.84. On motion of plaintiff the court set the verdict aside and awarded a new trial. Counsel for defendant insist this was error. The testimony is very conflicting, plaintiff and defendant swearing directly contrary to each other upon the matters averred in the plea, and it is insisted that the finding of the jury was conclusive. It is a rule too well established to require citation of authorities, that where a verdict rests solely upon conflicting testimony of witnesses, the court has no right to disturb it. But if there are facts or circumstances, controlling in their character, admitted to be true, or clearly proven, which are inconsistent with the testimony upon which the jury based their verdict, the court jnay, and should set it aside, as being contrary to the great weight of the evidence. Butcher v. Sommerville, 67 W. Va. 261; Coalmer v. Barrett, 61 W. Va. 237; and Devericks v. Fair Ground Imp. Co., 73 W. Va. 174, 80 S. E. 143.
This brick plant was located at Belington where defendant lived, and had commenced to operate only a few months before the sale of stock to defendant. He testified that plaintiff came to him to seli him stock, and assured him that he was an experienced manufacturer of brick; that the company had the best proposition -he had ever seen; and told him, if he would buy the stock, he would guarantee it to pay a dividend of ten per cent. He says he relied on those representations
Those letters, and the repeated renewals of the note, some of them made long after defendant knew, or should have known, if he had been reasonably diligent, of the alleged fraud or failure of consideration, are facts and circumstances wholly inconsistent with his testimony and present contention. They establish a waiver of any such defense as he now sets lip in his plea, and prove his election to abidi1 by the
It was not necessary, as counsel contend, that plaintiff should have replied specially to defendant’s special plea, before he could be permitted to prove an estoppel or waiver by defendant. The special plea was filed pursuant to Sec. 5, Ch. 126, Code 1913, permitting certain equitable defenses to be setup in defense of an action at law, and Sec. 6, of that chapter, expressly permits a plaintiff, on general replication to such plea, to “give in evidence on such issue, any matter which could be given in evidence, under a special replication if such replication were allowed.” It dispenses with the neces
The verdict was clearly against the overwhelming weight of evidence, and the court properly set it aside. It did not rest along upon conflicting testimony of witnesses. The facts and circumstances, not denied, which we have herein referred to, should have controlled the jury’s finding.
Plaintiff’s instruction No. 1, was erroneous, and should not have been gfren. It told the jury they could not find for defendant, on the ground that plaintiff promised to return the note and take back the stock, if they should believe such promise was made, but not in writing, and was not to be performed within a year. Defendant testified that there was an agreement, at the time he bought the stock, to cancel the trade if he became dissatisfied, but it is not pretended that it was in writing, and there is no evidence whatever when it was to be performed. Plaintiff denies that there was any agreement of that kind. If such an agreement was in fact made, the time when it was to be performed was indefinite, according to the only evidence on the question, and depended on the time when defendant should become dissatisfied .with his purchase of stock, which might have’ been within a year. There was nothing in the nature of the agreement which would necessarily extend its performance beyond a year. Therefore, there was no evidence on which to submit the time of performance to the jury. The performance being possible within a year, the agreement, if made, was not unenforceable because not in writing. McClanahan v. Otto-Marmet Coal & Mining Co., 74 W. Va. 543, 82 S. E. 752, and Beckley v. Zenn, 74 W. Va. 43, 81 S. E. 565.
The first part of plaintiff’s instruction No. 6 is also erroneous. The stock need not have been entirely worthless at the
We have carefully considered all the other instructions given on behalf of plaintiff and we think they were properly given.
It was no abuse of judicial discretion to set aside the verdict and grant a new trial, without requiring plaintiff to pay the costs. Sec. 5, Ch. 138, Code 1913. The trial court has wide discretion in the matter of requiring payment of costs, on granting a new trial, and this court will not interfere with such discretion, unless it appears to. have been abused. Garber v. Blatchley, 51 W. Va. 147. The record discloses no reason why plaintiff ought to have been required to pay the costs. It was no fault of his that he did not get a verdict on the first trial.
The order appealed from is affirmed.
Affirmed.