88 W. Va. 22 | W. Va. | 1921
The defendant by this writ of error seeks reversal of a judgment against him for the sum of $203,907.28, for damages for the breach of an alleged contract for the sale of certain corporate stock.
Plaintiff and defendant for many years had been business-associates, and in the spring of 1915 were jointly interested in lumber operations in the State of West Virginia, carried on in the name of Virginia Lumber Company, and in like operations-in Virginia, Tennessee and North 'Carolina, conducted in the name of Damascus Lumber Company. In addition to these companies, in which they had a common-interest, there were some other concerns in which they were likewise jointly interested, but which are only incidentally involved in 'this litigation. In addition to the interest which the defendant had in common
McCullough is supported in his contention as to the contract between him and Clark by the testimony of several other witnesses who heard conversations between the parties, in which Clark in effect admitted making the contract, and his purpose to carry it out when the audit was completed. On 'the other hand Clark contends that there never was any contract between him and McCullough for the purchase of his interest in the Damascus Lumber Company; that he and McCullough were contemplating a general settlement of all the affairs, between them, and that the audit made by Midlam and Yan Every, above referred to,
The jury found in answer to a special interrogatory submitted that the contract sued on by McCullough was actually made, and we are asked to overthrow this verdict upon the ground that the evidence does not warrant it. If this finding depended alone upon the oral testimony of McCullough, supported as it is by other witnesses who wiere present at various times when he and Clark negotiated in regard to the contract, contradicted as such
Defendant contends, however, that even assriming that the contract was sufficiently proven to justify the jury’s verdict, the plaintiff is entitled to no such measure of recovery as was applied by the jury. It appears that Clark was the owner of 76 per cent, of th'e stock of the Damascus Lumber Company, which was a Delaware corporation. This corporation was organized in the fall of 3-907. McCullough contends that prior to its organization he and Clark acquired considerable timber lands
There is another significant thing in this connection, and that is that when the audit above referred to was made for the purpose of acsertaining Clark’s standing with the Damascus Lumber Company, he charged that company with every cent paid out by him for the purchase of the mill, for the purchase of timber, for taxes paid upon timber, and for all expenses incurred by him in connection therewith. It is a little hard for us to comprehend why the Damascus Lumber Company should be treated as owing him for the money advanced for the purchase of this timber, and for the money advanced by him for the purchase of the mill if, as he says, he still owns the timber and the lumber company never had any interest therein, and he received all of the capital stock of the company as the purchase price of the mill. The effect of this is that the Damascus Lumber Company in this audit is made to pay every cent that was paid for the mill and Clark gets all of its capital stock for nothing. It is likewise made to pay every cent paid out by him for the purchase of timber which he claims he still owns. But he says in explanation of this that this audit was made up only for the purpose of a settlement between him and McCullough, and that inasmuch as their interests in the corporation were the same as their interests in the timber and the land, it was not necessary to separate the two transactions and make a settlement showing how he stood in relation to the standing timber, and what his standing was with the Damascus Lumber Company. This explanation would be plausible were it not for the fact that Clark’s interest in the Damascus Lumber Company is not the same as he claims it to be in the timber and land. He claims
Clark further contends that even though it be conceded that he made the contract sued upon,, and that- the timber and lands were assets of the Damascus Lumber Company, yet the verdict is grossly excessive, for the reason that the jury evidently included items as assets which were concededly not assets of the Damascus Lumber Company, and failed to give him credits to which he was entitled. The jury, under the instructions of the court, in arriving at the damages to which plaintiff was entitled, has ascertained the net assets of the Damascus Lumber Company. These assets consisted of a large amount of timber remaining uncut upon, the land, of the land itself, of the mill, of the amount due from the Thayer Company above referred to, of the value of the contract under which the Damascus Lumber Company was cutting the Thayer timber at its mill, if this contract was of any value, and of various other items of property. Some of the items allowed by the jury were fixed by an answer to interrogatories propounded. As to other items we are unable to say from the record what allowance was made therefor by the jury, except that some allowance was evidently made; because the amount of the verdict necessarily includes something for these other items. The jury was asked in an interrogatory if they allowed anything because of the thirty million feet of standing timber on one tract of land, ten million feet on another tract, four thousand cords of bark, and the real estate, and in answer to this interrogatory stated that
There is an item included in the bill of particulars of forty-five thousand dollars, being the amount received from the Thayer Company upon a settlement made in December, 1915, which it is contended the jury must have allowed in toto, when in fact and in truth a part of this item accrued after May 1, 1915. It is admitted in the record by the plaintiff that only about $32,000.00 of this item was an asset of the Damascus Lumber Company on May 1, 1915, and we are not justified in assuming that the jury allowed more than that amount in arriving at its verdict. The defendant insists that the jury did allow more than this amount, for the reason that its finding is for the very amount which would be arrived at by including this item as $45,000.00 and excluding another item claimed by the plaintiff for the value of the contract to saw the Thayer lumber as an asset. The fact that these amounts correspond does not justify the assumption that the jury arrived at its verdict by including the item confessedly not an asset, and by excluding an item upon which proof had been introduced, which would entitle them to consider it as an asset of the company. This claim that the jury included this $13,000.00 of the Thayer settlement which accrued after the first of May, 1915, as an asset as of that date is based solely and only upon the assumption that because the verdict it found was the same in amount as would be reached by including it and excluding the other item, that they did so include it and exclude the other item. As to how the jury reached its verdict we cannot in
The defendant insists that the court erred in permitting evidence to go to the jury for the purpose of establishing that the contract with the Thayer Company for the cutting of its timber at the Damascus Lumber Company’s mill was an asset, for the reason that the value of this contract was too speculative and uncertain to permit the jury to find that it was in fact worth anything to the Damascus Lumber Company on the first day of May, 1915. The contract provided that the Damascus Lumber Company should cut at its mill for the Thayer Company that company’s timber at a certain price per thousand feet, and should have in addition to this price what is denominated the offal, consisting of the slabs and other waste from the logs, which was by the Damascus Company'cut •into building lath and sold by it. A number of witnesses testify that this contract consituted a valuable asset of the Damascus Lumber Company; that the Thayer Company had remaining to be cut on the first of May, 1915, under this contract at least 60,000,000 feet of lumber, and that the profit that would be derived to the Damascus Lumber Company from cutting this sixty million feet under the terms of the contract would be at least one dollar per thousand feet, or sixty thousand dollars in all. On the other hand, Clark attempts to show that instead of this contract being an asset it was a liability; that because it must extend over a considerable period of time, and the cost of performing it, by the Damascus Lumber company, be uncertain, there could not be fixed any basis upon which to determine that it was of any value whatever. It must be borne in mind that any allowance of profits for the failure to perform a contract is more or less uncertain. What the future will bring forth no one can tell. Undoubtedly when parties enter into a contract each expects to derive some benefit therefrom, and when it is shown by those familiar with the situation that under existing conditions, and such changes as may reasonably be contemplated, a substantial benefit would accrue by reason of the terms of the contract, the plaintiff is justified in submitting to the jury the question of the quantum of damages for a breach thereof. 8 R. C. L., title “Dam
There is complaint that the jury included as assets of Damascus Lumber Company an item of $2500.00 for a one-half interest in Hemlock Extract Company.' We do not know from the general verdict whether this item was considered by the jury or not, but assuming that it was, it. appears that the evidence would justify such action. The Damascus Lumber Company furnished to this Extract Company $15,000.00 worth of bark for which -it was to have a one-half interest in the plant. This the plaintiff estimated at $2500.00 at the time he filed his suit, but since that time the Extract Company has been wound up and there was realized $8000.00, according to the evidence, after the payment of all debts, which would make this interest worth $4000.00 instead of $2500.00. Clark says the amount has not been paid, and if such is the case, no doubt it can be obtained by application to the propér party.
Clark also claims that he. advanced more money than the audit shows, and calls attention to certain items which he claims are not correct. This audit was made by Clark’s private secretary and the Damascus Company’s bookkeeper, and was the result of six weeks of labor. They had before them not only the Damascus Company’s books and papers, but also' Clark’s books, records and papers. For this reason it will be presumed to be prima facie correct, and if Clark would impeach it he must do so by evidence that satisfies that it is not correct. As an example of his effort along this line he attempts to say that he is not given credit for as much as he paid for insurance on the company’s property, and he bases his contention simply upon an entry in his own books, while it appears ■that this amount was ascertained by the . auditors' from the
Another complaint which the defendant makes is that there was certain purchase money remaining unpaid for some of the timber which the- jury did not consider. There is nothing to warrant such a conclusion. Of course, if Clark was a trustee holding this land and timber for Damascus Lumber Company, then any unpaid purchase money was a liability to be considered in determining the company's net ■ assets. In the statement filed by the plaintiff he placed the liabilities of the company at $20,000.00. Aside from this unpaid purchase money these debts actually amounted to only eight or nine thousand dollars, so that there was a sufficient balance of this estimated indebtedness to take care of the unpaid purchase money. These items are proven and we are not warranted in believing that the jury did not, in arriving at the net assets of the company, deduct the same from the gross assets as found by it.
The court instructed the jury that in arriving at the plaintiff’s measure of recovery, if they found that he was entitled to recover, they should ascertain the value of the defendant’s stock in the Damascus Lumber Company as of the first day of May, 1915, the time at which it was to have been delivered under the contract sued upon, and after deducting therefrom the amount which the plaintiff was to pay the defendant therefor, add interest on the remainder to the date of the verdict. The defendant insists that it was erroneous to permit the jury to include in their verdict anything in the nature of interest, inasmuch as' the claim was for unliquidated damages. This instruction is simply a direction to the jury as to the method to be used by it in liquidating these damages. The amount to which the plaintiff is entitled had to be ascertained by the jury as of the time they rendered their verdict. Manifestly to give him what the stock was worth, less the amount he was to pay therefor, three or four years before the date of the
The action of the court in giving to the jury plaintiff’s instruction No. 3 is also insisted upon as ground for reversal of this judgment. That instruction defines to the jury what is meant by the term preponderance of the evidence. It is as follows: "The Court instructs the jury that the requirement that the plaintiff must prove his case' by a preponderance of the evidence has to do with the weight of evidence, and if after the jury considers all the evidence in the case, both the evidence for the plaintiff and the evidence for the defendant, including all circumstances as well as direct testimony, and from all this the jury believe that the evidence in favor of the plaintiff outweighs that of the defendant, even in the- slightest degree, then this requirement as to the burden of proof on the plaintiff is fully met.” The defendant does not contend that this instruction does not correctly define the term preponderance of' the evidence, but his insistence is that it mislead the jury, inasmuch as some elements of the case were required to be proved by more than a preponderance of the evidence. He insists that the evidence to establish that he was holding the legal
The action of the court in giving to the jury plaintiff’s instruction No. 6-is also insisted upon as error. This instruction is as follows: “The Court instructs the jury that if from the evidence in this case they find for the plaintiff, then in determining the assets of the Damascus Lumber Company they must consider all property owned by said Company; whether it had the legal title thereto or not; and in determining whether or not said Company owned the property, or any part thereof, standing in the name of the defendant, the jury must consider all the facts and circumstances in the case applicable thereto, and must take into consideration the manner in which said property was treated and handled by the parties, and by the way in which the accounts were kept in relation thereto, and the official position held by defendant in said Company, as well as the way, if any, said property was treated by the defendant in the making of the audit of his accounts, as well as all other facts and circumstances, and from all the evidence determine if said defendant held the legal title to said property for the use7 and' bene-, fit of said Company, and thus determine if said Company had the equitable right to said property, and the value of said equitable rights on May 1, 1915.” The criticism made of this in
The action of the court in refusing to give to the jury defendant’s instruction Ho. 11 is also assigned as error. This instruction would have told the jury that if- they believed from the evidence that the minutes of the organization meetings of the Damascus Lumber Company, as read in evidence, are the minutes referred to in a subsequent minute by which the charter of the company was amended, which were offered in evidence by the plaintiff, then the plaintiff is estopped to deny the regularity or validity of such minutes and meetings, and cannot be heard to contradict the same. This instruction was not comprehensive enough even assuming that the propositions' of law contained in it are correct. It eliminates entirely from consideration the theory of McCullough that the contract at
The refusal to give to the jury defendants instruction No-. 9 as( presented, and in modifying it and giving it to the jury as modified, is also assigned as error. This instruction would have told the jury that in ascertaining the assets of the Damascus Lumber Company, if they believed from the evidence that the T. W. Thayer contract was a source of loss to the company instead of profit, they should deduct such loss from the assets. The court modified this instruction so as to tell the jury that if they found this contract to be a source of loss as of the first day of May, 1915, the date of the alleged contract, then they should deduct such loss from the assets. Clearly this modification was right. The jury in fixing the damages to which the plaintiff was entitled were compelled, so far as they could, to put themselves in the position of the parties on the first day of May, 1915, and if upon that day this Thayer contract was a liability rather than an asset, of course they should have so treated it. The instruction without this modification was indefinite in that it did not give to the jury a certain time at which they were to fix the effect of this contract upon the Damascus Lumber Company.
Another assignment of error is based upon an alleged abuse by counsel for the plaintiff of the privileges of argument in his closing address to the jury. We cannot even consider under the showing in this record the alleged abuse of privilege relied upon. It appears from the bill of exceptions that counsel for the plaintiff when making his argument to the jury was interrupted by defendant’s counsel with the request that certain remarks be taken down, to which demand or request plain
Other errors assigned are to the action of the court in admitting certain evidence offered by the plaintiff over the defendant’s objection, and in rejecting certain evidence offered by. the defendant. Counsel for the defendant, while in their brief insisting that they rely upon these errors, do not advance any reason for disturbing the verdict because thereof. Evidently in the preparation of their brief they considered them of such an inconsequential character as to be unworthy of serious presentation by way of argument. We have carefully examined them, and we quite agree with this conclusion.
We find no error in the judgment complained of, and the same is affirmed.
Affirmed.