84 W. Va. 233 | W. Va. | 1919
This action, begun before a justice, was upon two notes executed by defendant to plaintiff on August 15, 1916, at sixty days and four months, for $62.50 each, given in settlement for a pumping outfit for his dwelling house.
On the trial, on appeal by defendant from the judgment of the justice against him for the full amount of the notes, he was permitted to file in addition to his general denial his notice of recoupment in damages and set-off, setting forth some five items of damages, which notice on objection of
It is apparent from the record that the jury arrived at their verdict by charging defendant with the notes and accrued interest and crediting him with $23.40, the amount of his cheek of December 16, 1916, made to plaintiff for certain parts of the pumping outfit needed to replace those burst by freezing due to the negligence of defendant in failing to protect the pump against weather conditions. The notes and the execution of them by defendant, and that they were past due and unpaid at the date defendant gave his order and made his check for the new parts, were fully proven and not controverted.
The first item in defendant’s notice of recoupment and set-off, described at length, is predicated on the theory that it was a part of the original contract for the outfit, express or implied, that plaintiff would at all times and unconditionally furnished defendant with new parts, which contract it had broken by accepting his order and check for $23.40 and failing to ship the parts ordered, and that by reason thereof he was damaged the price or value of a new pump, which he places at $68.00. The second item was $24.00 paid out in an effort to repair the pump, based on the failure of plaintiff to furnish the new parts ordered. The third item was for $21.00, paid for extra labor in repairing the broken pump, caused by the failure of plaintiff to supply said parts. The fourth item was for $21.00, paid out for extra labor and work during the time said pump was out of repair, because of plaintiff’s failure to furnish new parts ordered. The fifth and last item of damage was for $50.00, damages for alleged inconveniences suffered by defendant and his family at his dwelling house, for want of the parts ordered.
At the conclusion of the trial, on motion of the plaintiff the court struck out all of defendant’s evidence offered in support of any of- these items except the first; and this is the first point of error urged against the judgment. In this ruling the court committed no error to the prejudice of de
And justifying the particular ruling of the trial court complained of, our decisions say that where the evidence, offered by defendant does not tend to prove any legal defense
Defendant also complains of the refusal of the court to give to the jury his instruction number three. By this instruction he assumed the fact not proven that it was a part of plaintiff’s original contract to furnish defendant with new parts, and the court was asked to tell the jury as a matter of law that he was entitled to recoup against his notes such damages as the jury should find from the evidence he had suffered by plaintiff’s alleged breach, and that the measure of his damages was such reasonable amount as the jury should find he had reasonably expended in an effort to render said pumping system serviceable and such outlay as he was required to make by reason of his inability to use said water plant, from the time plaintiff in due course after receipt of his order should have delivered such parts to him to the time defendant could after receiving notice of plaintiff’s refusal have obtained a new pump of like grade and capacity, and in addition thereto the price of a new pump whether actually purchased by him or not. Clearly the court committed no error in refusing this instruction; first, because there was no appreciable evidence to support the theory thereof. We hold there was no evidence justifying the conclusion that the original contract included an agreement to supply the new parts. Defendant here resorts to the theory of an implied contract. We find none of the elements of an implied contract. If there was no express contract, we cam not see how either the acts, conduct or relationship of the parties would imply a contract on the part of plaintiff to supply defendant new parts for the mjachinery sold him. If so, for how long a time, and upon what terms and conditions? All contracts whether express or implied, must contain the elements of a- contract. Implied contracts differ in no respects from other contracts involving agreement, except in
We observe that plaintiff did finally ship the parts ordered to their representative and notified defendant that they would be delivered through him upon condition of his pay< ment of his past due notes, but defendant would not receive them on this condition and by his correspondence seems to have preferred a law suit and an adjudication of his legal rights.
Our conclusion is to affirm the judgment.
Affirmed.