70 W. Va. 186 | W. Va. | 1911
Plaintiff recovered a judgment for $500 against W. B. Maxwell, L. P. Loudin, William Flint and J. A. Cunningham, and they have obtained this writ of error. This case was reviewed upon a former writ of error, and will be found reported in 61 W. Va. 9.
Plaintiff’s suit is for services rendered in procuring a purchaser for a tract of timber land in Randolph county controlled, and later owned, by defendants, pursuant to an alleged oral agreement that'for such services he should be paid $500. That he did procure a purchaser and introduce him to defendants, and that defendants thereupon began negotiations with him, which in a short time thereafter ended in their selling the land
At the time plaintiff was employed to And a purchaser defendants were not the owners of the land in question, but Mr. Cunningham had an option contract with the owners to purchase it at a certain price. That option expired on the 28th day of February, 1903. It was on the 11th of March following that plaintiff introduced to defendants the man who purchased from them. On the day before the option expired, the land was taken over by defendants. It was then conveyed by the owners to L. P. Loudin, trustee, who held it in trust for himself and the others in the following proportions, viz: Flint and Maxwell each a fourth, Loudin one-eighth, and Cunningham three-eighths. On the same day a written declaration of trust was signed by all four of the defendants showing the several interests as above stated. Prior to that time Mr. Maxwell had become jointly interested with Mr. Cunningham in the option, and, not finding a purchaser and seeing the option about to expire, they decided to'purchase the land themselves, and did so, by interesting the two other defendants, Loudin and Flint, as partners. They bought the land for the purpose of speculation, and were as anxious to find a purchaser after the 18th of February, as before. The cause for limiting plaintiff to the 28th of February as the time in which he could find a purchaser, was removed by their taking over the land themselves, and by their continuing desire to sell, and they never notified plaintiff of their own purchase of the land, but apparently permitted him to continue his efforts to find a purchaser, without any new agreement or understanding. Being now the owners, they had the power to extend plaintiff’s time, as well as the opportunity to receive the benefit of his services. Whether or not the time was extended, was a fact which the jury might have inferred from the facts and the conduct of the parties.
Plaintiff testifies that on the day the purchaser with whom he had been in correspondence, arrived in the city of Elkins,
Seven instructions were given on behalf of plaintiff. It is useless to review them seriatim, as they involve no novel legal proposition. It suffices to say that we have carefully considered them, and find that they conform to the law as announced on the former hearing.
Five instructions asked for by defendants were refused. As an abstract proposition of law, Ho. 1 is correct, but if applied
No. 3 is objectionable, and was properly refused, because there is no evidence whatever that plaintiff’s services were to . be gratuitous. And No. o is bad because it introduces the element of a new, or additional, contract concerning which there is no evidence offered, by either party.
But for the special contract, plaintiff might have recovered a judgment two or three times as large, on a quantum, meruit, under the common assumpsit counts. His evidence tends to prove that such service as he rendered was reasonably worth much more than he had agreed to accept.
We find no error calling for a reversal and will affirm the judgment.
Affirmed.