69 W. Va. 100 | W. Va. | 1911
Assigning numerous errors, the J. K. Droney Lumber Company complains of a judgment against it, in the circuit court of Pocahontas county, for the sum of $12,000.00, in favor of M. L. Comstock, rendered in an action of assumpsii on a working contract.
The plaintiff in error is a corporation, organized under the laws of this state, and, having failed to pay its license tax for the year 1909, it has been included in a proclamation by the Governor, declaring the delinquency of corporations for that cause, and also in an order of publication, made in a suit instituted by the Attorney General, to forfeit the charters of all the corporations included in said proclamation. Copies of these two papers have been filed here, since the allowance of the writ of error, in support of a motion to dismiss it. The theory of this motion is that the prosecution of the-writ of error is an exercise of the company’s charter powers, which the statute, sec. 136 of chapter 32 of the Code, inhibits, after the publication of such proclamation. This statute must receive a reasonable construction. In our opinion, the phrase “exercise or attempt to exercise any power” under the charter, must be read as if it said carry on the business of the corporation, and “doing business”, as found in such statutes, has been construed as not extending to the mere act of suing or defending suits in respect to contracts made or rights acquired, while the corporation had power to do business.
The sufficiency of the declaration is challenged on several grounds, a demurrer.to it and each count thereof having been interposed and overruled. It contains one count only, based upon a written contract between the J. R. Droney Lumber Company, of the one part, and M. L. Comstock & Company, of the other part, by which the parties of the second part agreed to cut and deliver at certain places" all of the merchantable timber on a certain tract of land belonging to the party of the first part, which service the latter agreed to pay for at certain prices, ranging from $2.50 to $6.00 per. thousand feet: This contract further provided that, if the parties of the second part should comply with the terms thereof, respecting that tract of land, designated in the record as Tract Ho. 1, they should have an option to cut the timber on another tract, designated in the record as Tract 3STo. 2. Before cutting the timber on Tract Ho. 2, the parties of the second part were to peel and deliver on board the ears the bark from all chestnut oak trees thereon, for which service the party of the first part agreed to pay them $4.50 per cord. This done, they were to cut the timber into logs and deliver them at certain points called landings or skids, for which service they were to be paid certain prices, ranging from $5.00 to $5.50 per thousand" feet. M. L. Comstock alone sues for breach of this contract, made by a copartnership, consisting of himself and another party, one Odell. In the declaration, he alleges that he had “acquired the entire interest of the said M. L. Comstock &
The next contention is that the declaration, covering both tracts of land and charging a.breach of the entire contract, does not sufficiently aver performance of all that was required of the plaintiff, respecting the work to be done on Tract Ho. 1, completion of that work having been made a condition precedent to any right on his part to work on Tract Ho. 2. The declaration sets forth the contract, showing what it was incumbent upon the plaintiff to perform. This is followed by an averment that he had performed'and fulfilled all things on his part and behalf in the said agreement to be performed and fulfilled-; and that he did enter upon and commence the said work, and, for that purpose, did procure and find all materials and labor necessary for performing the same and did the same in part, to-wit:feet thereof, to the satisfaction of the defendant, and has always
The next question raised upon the demurrer embraces also a charge of error in the rejection of a special plea. As the declaration shows, on its face, the awarding of an injunction to prevent the further cutting of timber, under the contract, it is insisted that this admission of the pendency of an injunction suit makes the declaration bad, on the theory, either that the plaintiff has no remedy, since the prevention of further performance was by legal process, or, that his remedy is by an action upon the injunction bond, and not otherwise. It seems to be well settled that at common law there was no right of action for damages
The action of the court in sustaining an objection to a question propounded to the plaintiff on cross-examination is the subject matter of another assignment of error. This question related to the completion of the work under the first contract and was’ a repetition of one which had been previously propounded and answered, both on the examination of the witness in chief and his cross-examination. The court clearly had discretion to prevent such repetition. The defendant already had the benefit of more than one answer to that question.
The opinion of a witness as to the quantity of timber uncut and standing in the woods was objected to, and, to the action of the court in overruling the objection, the defendant excepted. This witness testified that he had had about 35- years’ experience as a woodsman and 10 years of such experience in the State of West Virginia. He also said he had something like 30 years’ experience as a contractor in respect to the cutting and manufacture of timber, and had gone over Tract No. 2 for the purpose of estimating the timber on it as well as to see what kind of work the plaintiff had done. In his examination, he seems not to have gone entirely over the tract of land, but he says the boundaries were pointed out to him and he went up the main hollow on both sides, but did not know how far the timber extended back. Having - stated this knowledge and experience he was permitted to say he thought, by the looks of the timber,, there was at least eight or ten million feet. We think this evidence was admissible. Having been upon the ground and seen the timber, the witness was competent to give his opinion as to the quantity, but his failure to go carefully over all the ground and ascertain the boundaries was a matter for consideration of the jury in passing upon the soundness, accuracy and probative value of his opinion. His evidence may not have been very valuable, but it was relevant and material, and, therefore, admissible. It proved the existence of a large amount of timber;
AYe have carefully examined all the instructions, concerning which the benefit of exceptions were saved and find no fault with the rulings of the court thereon. No. 1 and No..3, given for the plaintiff, read together, tell the jury to find for the- plaintiff and properly state the measure of damages, if they believe the plaintiff was ready and willing to perform the contract, or had partly performed it, in a manner satisfactory to' the defendant,. but not in strict conformity with its terms, and had been prevented by the defendant from completing it. Substantially all the argument against them has been disposed of by the principles declared, respecting the special plea. Plaintiff’s instruction No. 2, relating to the credit to be accorded the testimony of witnesses is in accord with well settled principles and rules often declared by this Court. Defendant’s instruction No. 2, relying upon the effect of the injunction as a bar to the action, was properly refused for reasons already stated. Its instruction No. 4, peremptorily directing a verdict for the defendant was properly refused, since the evidence, as will bp hereinafter shown, was sufficient to sustain a verdict. Its instruction No. 6, relying upon the partnership) relation as a bar, was properly refused for reasons stated, in passing upon the demurrer. '
Substantially all the evidence, adduced by the plaintiff, to fix the amount of damages, on the basis of eight or. ten million feet, consists of his own testimony and that of the witness Lord, and amounts to nothing more than their opinions as to the quantity of standing timber. Neither of these witnesses shows how his estimate was made. They do not state the area of land nor the estimated quantity of timber per acre. Lord admits that he did not know the area or the boundaries. Obviously they have given mere rough guesses as to the quantity of uncut timber. On the other hand, two witnesses for the defendant who superintended the work of taking this timber off of the land, for a purchaser thereof, after the plaintiff’s work -was stopped, palace the amount taken off, as ascertained by actual measurement, at less than two million feet. A. J. Cook says the exact quantity taken off was 1,576,096 feet. W. O. Tomb says it was approximately 1,551,096. Both say that, after this had been taken off, there remained on Tract No. 2 less than 300,000 feet. The
We deem it necessary to say, for the purposes of a new trial, that the plaintiff’s case was open to objection on the ground of variance, since he did not, prove full performance of precedent conditions, in accordance with the allegations of his declaration, but did adduce evidence, without objection, of modifications of the contract and excuses for failure to comply strictly with all its terms and conditions. On the trial, the variance was waived by the failure of the defendant to take advantage of it by proper objections. Long v. Campbell, 37 W. Va. 665; Smith v. Lawson, 18 W. Va. 212; Damarin v. Young, 27 W. Va. 438; Davis v. Miller, 14 Grat. 19. It is not a total variance, or one incurable by amendment, and, if the objection had been made, no doubt the declaration would have been amended, and this should be done before a new trial is had.
For the reason stated, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed and Remanded.