118 Va. 131 | Va. | 1915
delivered the opinion of the court.
This writ of error draws in question the validity of a judgment recovered by C. C. Clinedinst against the J. O. Houck Tanning Company in a proceeding by way of motion on an account.
The bill of particulars covered the following items:
Extra work handling 720 tons of bark on Cornelius creek and Pine mountain, at fifty cents per ton............................... 350.00
Hire of team kept idle from September 1, to September 28th, by failure of defendant to furnish tram cars to haul bark............ 72.00
Hire of team for similar neglect for forty days in August and September ............... 120.00
$1,027.00
The litigation arose out of the following transaction: On January 13, 1913, the J. P. Houck Tanning Company made a contract in wilting with the Virginia Lumber and Extract Company, the pertinent features of which were, that the first party agreed to buy from the second party 4,000 tons of chestnut oak and hemlock bark at $2.75 per ton. Peeling and removing the bark was to be done by the first party, and it was to be loaded on tram cars and moved out as rapidly as possible; the loading, etc., to begin within two weeks after peeling commenced, and all bark to be weighed and shipped or stored by November 1, 1913. The territory on which' bark was to be peeled was to be accessible to the logging road and under the supervision of the manager of the second party. The price of $2.75 per ton included transportation of bark by the second party from the woods to its yards at Arcadia. The first party was to furnish tram cars free of charge and to be responsible for wrecks caused by improper loading of rolling stock, and the second party to be responsible for wrecks caused by defective track.
On January 16, 1913, plaintiff entered into a written agreement with defendant, the material stipulations of which were these: Plaintiff agreed to peel and deliver f. o. b. tram cars
Between the dates of the first and second contracts, and with the view to the execution of the latter, plaintiff and Hoover (defendant’s bark superintendent), in company with Edgar (superintendent of the Virginia Lumber and Extract Company) and several prospective contractors for peeling and removing bark, went upon the land in question and had pointed out the boundaries of land where each of them was to peel bark, and, by Edgar, blazed routes for extension and construction of the tram ways, and. points along which bark was to be delivered on the tram cars. The evidence tended to show that plaintiff’s writ of agreement, by both contracting parties was hypothecated upon the fulfilment of these representations; and that without such understanding, they (or certainly the plaintiff) would not have entered into the contract. The contemplated extensions of the tram roads were not made in time for plaintiff to reap the benefit of them.
From the standpoint of a demurrer to the evidence at least, the testimony on behalf of the plaintiff was sufficient to sustain the jury’s finding that subsequent to the written agreement defendant assumed to pay $882.00 of plaintiff’s demand, with interest from November 1, 1913, subject to a set-off of $514.30, with interest from the same - date (the correctness of which was admitted).
Defendant strenuously sought to exclude from the jury all parol evidence in support of plaintiff’s demand, and, later, moved to strike it out, and excepted to instructions based thereon, on the theory that such evidence tended to vary the terms of the written contract; yet, obviously, the parol evidence rule has no application to the present case, when plain
We find no reversible error in judgment complained of, and it is affirmed.
Affirmed.