51 W. Va. 163 | W. Va. | 1902
This was an action of assumpsit brought in the circuit court of Barbour County by Bay C. Coulter against C. G. Blatchley for the use of tools used in boring for oil. Plaintiff filed with
Defendant says it was error to give the following three instructions for the plaintiff over the objection of the defendant: “No. 1. The court instructs the jury that if they believe from the evidence that the defendant failed to return or to account for the value of any of the tools rented to him, then in that case ■they should find for the plaintiff the value of such tools not returned. No. 2. The court instructs the jury that if they believe from the evidence that the defendant had hired the plaintiff’s tools and had quit work on the well in question, and had not purchased said tools, it was the duty of the' defendant to
Defendant’s bill of exception No.’5 goes to all the exceptions taken to parts of the evidence as set out in bill of exception No. 1, which included all the oral testimony given in the case and especially “to certain numerous declarations and acts of one M. M. Hoff, Floyd Teter and others for the purpose of proving or tending to prove that said Hoff and Teter were the agents of defendant in the use of, and in respect to the use of and detention of the tools of plaintiff, as set out in his account in this action on and after the 25th day of August, 1896, to all of which testimony in chief and upon said cross-examination and every part thereof, for the purpose aforesaid, defendant objected,” which objection the court overruled. Counsel’for plaintiff in error in his brief refers to this evidence in a general way and also, what he terms, the reckless cross examination of appellant’s witnesses by appellee’s counsel in cross examining them about matters concerning which they were not examined in chief, and in presuming in such cross examination that to be proved which was not proved for the purpose of establishing, or tending to establish, this agency, which being permitted by the court was a palpable violation of the law of evidence and cites 1 Greenleaf on Evidence, s. 449; 1 Starkie on Evidence, 188; and also State v. Hatfield, 37 S. E. 626, but he fails to point out such parts of the evidence to which such authorities are applicable. I note one objection to a question asked Dr. Hoff on cross examination “When he (Floyd Teter) left over there he asked you to stay at the well, now when was that Teter told you that?” This question was objected to, objection overruled and exception taken, but it was admitted by Blatchley in his testimony that Teter was his agent. Also a question asked Mr. Blatchley on cross examination as to whether he would have had, under his understanding of the arrangement or contract, any interest in the oil in case they had struck it in that well, which was also objected to, objection overruled and exception
Bill of exception No. 6 goes to the admission in evidence of a paper writing identified by witness, John Garber, as being in the handwriting of one Frank Scott purporting to be a record of the time of witness Garber while working on the oil well on and after the 25th day of August, 1896, upon which said writing a pencil memorandum, signed M. M. Hoff, "for the purpose of showing the agency of Dr. M. M. Hoff in this controversy for the defendant Blatchley, as being the man in charge of the well at the time the tools were used that are in controversy.” The record shows that when first offered the paper was objected to and objection sustained, it was then offered by the plaintiff for the purpose of showing the agency of Dr. .Hoff as indicated in the bill of exceptions but was not permitted to go in for that purpose, but it is shown that “the court admits the time kept by Frank Scott of John Garber in evidence for the purpose of tending to make out the correctness of plaintiff’s account;” so that it was not admitted for the purpose for which it was offered by' plaintiff, of showing the agency of Hoff, but simply of tending to make out the correctness of plaintiff’s account, the said Garber being in charge of the tools for which plaintiff was charging for the time. It had been pretty well established that Dr. Hoff had been in charge of the well and had endorsed and o. k’d papers. In Mitchum v. Dunlap, 98 Mo. 418, it is held: “The authority of an agent need not be proved by an express contract of agency, it may be proved by the habits and course of business of the principal.” And further “Agency and the extent of the authority of the agent may be inferred from circumstances.” Union Stockyards etc. v. Mallory, 157 Ill. 554; (48 Am. St. 341).
Bill of exception No. 7 under assignment of error No. 6 sets out the contract in writing dated 17th day of June, 1895, between Y. W. 'Kittle, W. P. Scott and S. T. H. Holt of the first
The seventh assignment of error is that the court refused to set aside the verdict and grant defendant a new trial for the reasons set out, assigned and excepted to in bill of exception No. 1, which have been herein referred to and discussed in the treatment of said assignment of error. ' The evidence was conflicting and came within the province of the jury, which found for the defendant in error. “Where a motion for a new trial is made, on the ground that the verdict is contrary to the evidence, and the motion is denied, the opinion of the court, which tried the cause, is on such point entitled to great respect in the appellate court. And the appellate court in such case will grant such new trial only in the case of a plain deviation from right and justice.” State v. Hunter, 37 W. Va. 744; Sigler v. Beebe, 44 W. Va. 587; Jones v. Manufacturing Co., 38 W. Va. 148, (18 S. E. 478); Gilmer v. Sydenstricker, 42 W. Va. 52. There appearing to be no reversible error in the judgment, the same is affirmed.
Affirmed.