92 W. Va. 419 | W. Va. | 1922
This writ of error brings np for review a-judgment of the Circuit Court of Kanawha County rendered in favor of the plaintiff, notwithstanding the verdict of the jury in favor of the defendants. The suit is an action of assumpsit brought to recover the sum of fifteen hundred dollars which it is claimed the two defendants received out of the treasury of the plaintiff without any authority, or without any consideration; they being at the time the president and the treasurer of the plaintiff respectively.
The facts are that the plaintiff was organized as a corporation in September, 1919. The defendants were the promoters of this corporation. Prior to its organization the defendant Crissey had an option from the Dunbar Land Company by which that company agreed to turn over to a corporation to be organized with a capital stock of a million dollars, four hundred thousand dollars thereof to be preferred stock, six hundred thousand dollars common stock, a certain piece of property in the city of Dunbar, to be used by such corporation in carrying on its business. The plaintiff was organized for the purpose of accepting the benefits of that option. The option provided that the Dunbar Land Company should receive for the property turned over by it fifteen thousand dollars of the preferred stock of said corporation, seven thousand five hundred dollars of the common stock, and thirty thousands dollars in money,' ten thousand dollars of which was to be paid in cash, and the balance in deferred installments. After the plaintiff was organized the defendant Crissey made a proposition to the corporation to turn over to it the benefits of the option con
The first proposition presented for our consideration is, could the court properly enter a judgment in favor of the plaintiff notwithstanding the verdict of the jury? It will be borne in mind that such judgment is not based alone upon the pleadings in the case, inasmuch as the plaintiff would not be entitled to recover upon the face of the pleadings without the introduction of any evidence. Rendition of the judgment involved a consideration of the evidence and a finding by the court that the proof offered by the plaintiff entitled it to recover notwithstanding the defense made. In Holt v. Elevator Company, 78 W. Va. 785, it was held that a judgment non obstante verdicto must be based upon the merits of the case as disclosed' by the pleadings, and not in any
This results, of course, in a reversal of the judgment rendered by the circuit court, and the defendants insist that they are entitled to have a judgment of nil capiat rendered upon the verdict of the jury, while the plaintiff insists that if the present judgment be- not sustained it is entitled to have the verdict of the jury set aside, and a new trial awarded. Of course,- if the evidence offered upon the trial .of the case justified the jury’s verdict, then the defendants’ contention is correct. If, on the other hand, the facts sub
It follows, therefore, that the judgment of the circuit court complained of will be reversed, the verdict of the jury set aside, and the cause remanded for a new trial.
Reversed and remanded.