94 W. Va. 236 | W. Va. | 1923
This writ of error is prosecuted by the. News Publishing Company from an order of the circuit court of Wood county entered on the 4th day of April, 1922, which set aside the verdict of a jury for $8,750.00 in favor of plaintiff, against the defendant, Denison-Pratt Paper Company.
The action is assumpsit brought by the News Publishing Company, hereinafter called plaintiff, to recover damages from Denison-Pratt Paper Company, hereinafter called defendant, for the breach of an alleged verbal contract made between the parties in September, 1919, for the purchase by plaintiff from defendant of 100,000 pounds of Aldrich newsprint paper, at the price of 5¼ cents per pound, and for the breach of another contract alleged to have been .made in March, 1920, for the sale by defendant to plaintiff of 20 tons of St. Regis paper at 6% cents per pound. The paper was never delivered. Plaintiff purchased other paper on the market and the excess beyond the contract price is the sum laid as damages.
Defendant is a non-resident corporation, and an attachment was issued, two resident newspaper companies being designated as. owing debts and holding property belonging to defendant. These newspapers answered that they had funds in their hands belonging to defendant amounting to $7,348.98. Defendant appeared specially, gave a bond in lieu - of the money attached and the garnishees were discharged. Defendant filed a plea in abatement denying any liability on the contracts and denying the ground for'attachment, and issue was thereon joined and the case tried on this issue, resulting in the verdict above set out, which, upon motion of defendant, was set aside and a new trial awarded. As above stated this writ is to the order of the circuit court setting aside the verdict and awarding a new trial. ■
In 1919 newsprint paper became scarce, and the price rapid
Kearney, the secretary and stenographer to Gray, says the carbon letter came to the office about the 1st of October, and he' noted that the price was incprrect and attempted to get in touch with Clayden to have it corrected but failed to do' so and that it was about two weeks afterwards that Clayden came to his office and then inquired about the paper, when he was told of the mistake in the order, and he details a conversation with Clayden resulting in a change in the price as contained in the carbon. This witness corroborates Clay-den and Ogden to the effect that they both CRme to Gray’s office in the spring of 1920 and conferred with Gray in his presence and possibly in- the presence of a salesman for defendant company concerning the delivery of this Aldrich paper. He says there was no statement made in his presence by Gray that the Aldrich paper or any part thereof had been shipped. He says Gray explained vhy he was unable to get the paper from the mill, saying that the mill owner was filling high priced orders and was disregarding low priced orders. It will be seen that Kearney’s recollection contradicts both Gray and Clayden as to the time the correction was made of the price in the confirmation letter. It will also be noted that he contradicts Gray and confirms Ogden and Clayden in the fact that they were in Gray’s office in the spring of 1920 insisting upon the fulfillment of the contract.
The testimony of these witnesses concerning the making of the contract and the subsequent conversations relating
The other contract for the sale and purchase of 20 tons
Following the alleged repudiation of the two contracts by Gray in the latter part of March, 1920, plaintiff bought newsprint paper of similar character and quality to that of the Aldrich and ,St. Regis paper, wherever it could be obtained. It appears from Ogden’s testimony that spot paper had then advanced to 12c, 13e and 14c and in some cases 16c per pound; that immediately after the repudiation of the contracts ■ he
By witnesses Knode, Becker, Green, Hastings and Gray,
At the conclusion of the evidence defendant tendered and the court gave defendant’s instruction No. 3, which told the jury that if they believed plaintiff’s claim was based on an oral agreement for the sale and delivery of 100,000 lbs. of paper of the value of $50 or upwards, then plaintiff could not recover unless the jury further believed that plaintiff had accepted a part of said paper and actually received same, or given something in earnest to bind the contract or in part payment thereof, or unless some note or memorandum in writing of said contract or sale had been signed by defendant or its agent. This instruction is based on the first section of the New York statute of frauds. The theory of defendant is that the contract, if any there was, was a New York contract to be executed in that state, and the law of the place of the contract was a part of the contract and governs in its enforcement in this state. It asserts that the lex conractus governs instead of the lex fori, and therefore the statute of frauds of New York was applicable. Plaintiff contends that the place of delivery of the Aldrich paper was Wheeling, W. Va.; that the New York statute of frauds “does not render such contracts void and is only a limitation of judicial authority on the courts of New York to afford a remedy. It refers only to the remedy, and as to the remedy the laws of West Virginia, where the suit was brought, apply.” Many citations and much argument are directed to these respective contentions. But could defendant rely upon the New York statute in this manner, even upon the assumption that it was a New York contract to which the statute would apply in a forum of this state ? It was not pleaded. It is very well established in many states that foreign statutes will not be judicially noticed, but are considered as facts which must be pleaded and proved as other facts. 20 Ency. PI. & Pr. 598; 25 R. C. L. 948. But there are some conditions, though,
We hold that under the pleadings the statute of frauds of New York, had no place in the trial; and it follows that defendant’s instruction No. 3, which told the jury to find for defendant on the issue as to the alleged September agreement (100,000 lbs. paper) was erroneous. Plaintiff’s instructions No. 6 and 7, given to meet defendant’s instruction No. 3, relating to the statute of frauds, and which told the jury that if they believed the contract was made and afterwards within a reasonable time confirmed by letter of Glayden, plaintiff’s agent, containing a clerical’ error as to price, and corrected within- a reasonable time in the presence of defendant or its agent, and assented to by him, was a sufficient note or memorandum to comply with the New York statute of frauds; and plaintiff’s instruction No. 7, which told the jury that the letters offering and accepting the St. Regis paper at 6 % ets. per pound, constituted a sufficient memorandum in writing to comply with the New York statute of frauds, were likewise erroneous. These errors were induced by defendant and it cannot complain. In the light of the verdict they were harmless.
Under the pleadings, if any statute of frauds is applicable to the contract it would be that of this state, which does not have a provision similar .to the 1st section of the New York statute of which the 17th section of the English statute (29
On the amount of damages, if the jury found for plaintiff they were instructed by plaintiff’s instructions No. 4 and 5 that if they believed there was a contract for the 100,000 lbs. of paper at $5.25 per hundred pounds, to be delivered within a reasonable time, not later than February or March, 1920, and another contract in March, 1920, for twenty tons of paper at 6 %e per pound to be delivered in that month, and that defendant failed to deliver any of the paper so sold and purchased and that plaintiff was compelled to buy paper in the open market of the same kind and quality, then plaintiff had the right to charge defendant with the difference between the contract price and what it was compelled to pay in the open market. And by defendant’s instruction No. 4 the jury were told that if they found for plaintiff it Would be entitled to recover the difference 'between the contract prices f. o. b. mills and the market price for' the paper 'at the mills at the time for delivery of the paper, or if there was then and there no market at which such paper could be purchased by plaintiff, then at the most available market for such paper, and if such market price was in excess of said contract price,then such excess would be the amount which plaintiff would be entitled to recover on the issue joined. It is said that these instructions are in conflict, and would vitiate the ver-
Defendant’s reliance to defeat recovery is based on the assumption that no contract was made, because Gray did not have the order confirmed by his principal (defendant) and because the order, through plaintiff’s mistake, did not go to the mill promptly, and consequently was never accepted by the mill; and that even if there was a contract as to the Aldrich paper it was barred by the New York statute of frauds. The court proceeded on the theory that the contract for the Aldrich paper was governed by that statute and so instructed the jury in defendant’s instruction No. 3. The jury did not follow that instruction; and the court set aside the verdict. It is manifest that if the court was right as a matter of law on this instruction, the verdict should have been set aside. We have seen that the statute of frauds of New York had no place in the trial under the pleadings. The controversy is then narrowed down to whether there was a contract, and if there was one the true measure of damage for its breach. That there was a contract for both shipments is clear. The instructions on the measure of damages are not irreconcilable and not necessarily conflicting, and the verdict under the evidence and these instructions is to the prejudice of plaintiff, who does not complain. Whether Gray was the agent of defendant and bound it by the contract and his subsequent actions, was submitted to the jury by defendant’s instructions, and there is no error alleged for that reason. Clearly he was the duly accredited agent.
We can find no error in the trial which would warrant the action of the court in setting aside the verdict. The order of the court setting aside the verdict is reversed, the verdict reinstated and judgment rendered, thereon in favor of plaintiff by this court.
Reversed and judgment for plaintiff.