Penix v. Grafton
86 W. Va. 278
W. Va.
1920
Check Treatment
Ritz., Judge;

This writ of error brings up for review a judgment of the circuit court of Payette county in favor of the plaintiff, rendered upon the verdict of a jury in an action of assumpsit.

. At the threshold we are met with a motion to' dismiss the writ of error as improvidently awarded, several grounds being assgined therefor, some of which have, however, been cured by the return to- a writ of certiorari awarded herein. Two of the grounds insisted-upon are: first, that the judgment of the circuit court cannot be considered because it is not made- part of the record by any bill of exceptions, and only appears in the final order of the court; and, second, that the record does not show that the bill of exceptions was signed within thirty days from the adjournment of the term at which the judgment was rendered. So far as the first ground is concerned it is without merit. The function and purpose of a bill of exceptions is to disclose the supposed errors which were committed by the court during the trial of the case which do not appear in the record already made. Hinton Milling Co. v. New River Milling Co., 78 W. Va., 3,14. It would be entirely supererogatory to- bring into the record as part thereof by bill of exceptions those things which are already part thereof, such as orders or judgments of the court, or the pleadings which have been filed in the case. The second 'ground for dismissing the writ is likewise without merit. The 'record shows that the final judgment was entered on the 27th of March, 1919, at a regular term of the circuit court in session on that day, and while the order recites that the questions arising on the motion were submitted on the 22nd of March, and the bill of exceptions not taken till the 24th of April, still this judgment order clearly shows that it was entered on the 27th of March, or less than thirty days before the bill of exceptions was taken and filed. But even if it could be considered that the judgment was entered as of the 22nd of March, still the order clearly shows that the court was still in session on the 27th, which was less than thirty days from the date upon which the bill of exceptions was filed, as shown by the. order filing the same.

The controversy out of which this suit grows is over the value *281of services-elaimedito hasíe-b.eén.render.edsby theiplaintiff-ior; the;.,-:defendants.. On /the. 19th-pf April; • 1917; the- plaintiff1 and-.pne:; F.,H. Brazie entered-into a contract with .the defendant - Janggs----Grafton -by which, they undertook and .agreed to furnish a]l of dfxe;: walnut-logs that, could he acquired by them-tp the.said.,Grafton-,.-;. at prices-therein.mentioned, .the. quantity furnished nof-tpibe.^ less-than three carloads. The-plaintiff--claims-that.:after this..eon-tract, was .entered into. Grafton came, to .Fayetteville and. requested the plaintiff to secure the interest of.Bmzie,in the. contract, ■ and upon his replying that he did not have the,-money fo buy Bra-zie out Grafton-told-him that he.-would furnish.the,-.money if he-,--Penix, -would acquire Brazie’s interes-h-.- Acting ¡upon this,jhe.;.i-bought Brazie’s-interest in the; contract,-and Grafton ■ paid the: .- money, .and by -writing endorsed-..on the- contract- Brazie '.was . released-from its. performance, .and- -Penix substituted in lieji-pf -,. himself and Brazie.- .Plaintiff says that-the -defendant-Graf tan,., then fold him to disregard, .the contract and .consider-it at.,.an- . end-, that he .wanted the logs .gotten, out--quicklyy.that.,he- was;..under..a heavy bond to.-the ,British government-.to furnish the ■ lumber -at once-; and told him- if he would -go..to .work-for him/,'., regardless -of the contract, and,hunt .up .all pf the-walnut timber* that could he secured, and-have it hauled-to certain mills, to-be, - cut,-that he-would-be well-paid for his.services-; and.-tha-t,, acting..;.upon..<this.;-he did go to-work .and secure alarge.amount-pf-walnuti,. timber, amounting in - the aggregate, to about,.three or. four car- - loads, and that -he never,.received an5#i-ing,¡for .his, .services, .and -l claims that he-.is entitled to. receive -reasonable- .compensation.. therefor,-and fixes such .charge at -three dollars .¡per .day, .He, ■■ states that the arrangement through•-which the oontract was-set--■ aside and -abrogated was made in .the-presence of the defendant: Lanham and the said Brazie, Braz.ie .testifies-equ-ivocailyá.n.tthe;..-. case, his answer-being .susceptible o-f-a construction isnppo-r ting the plaintiff, and also .susceptible to .another-construction-contradict-ing the plaintiff’s contention. Both of the-defendants .deny, that,there was .such an-arrangement,--and insist tha-t whatever timber was furnished by Penix. was furnished under, and by virtue; of, the ..terms of the -contract. There are many .circumstances-in-the case- tending -to.-suppert Penix’s contention;..and-a -great-many,tending to support the contention --of-ithe’ defendants. It is ad*282mitted’that if Penix furnished' these logs under the contract then he-has been overpaid 'by -reason' of payments made by Grafton to the owners of the timber/ and for the expense of cutting and hauling it to the railroad, but -if, on the other hand, he was' employed by Grafton, as Ire states; then he' has received nothing for his services." It will thus be seen'that the sole question is whether or not the logs were' furnished under the contract, or whether Penix was an employe of 'the defendants, to' be paid reasonable wages for his services.

This suit was brought, by1 Penix'against the two' defendant’s Glrafton and Lanham, upon the theory that he was their employe, ’ and that he did not procure the walnut logs furnished by him uhder the contract, while' the defense to the suit is that they were-furnished under the contract, and inasmuch as more than enough money has been paid to meet the obligations arising because of the furnishing of the logs, if they were furnished under the contract, there is no right of recovery."' It may be said in passing that there would seem to be no reason in the world for joining Lanham as a defendant in this suit. It is shown without-dispute that he was simply the employe of the defendant Grafton, and whatever the arrangement may have been with Penix^ the opposite contracting party was Grafton,' and not Grafton and Lanham. Nor can his joinder as a defendant be justified upon the 'ground that the defendants - held themselves out as jointly interested, for the plaintiff himself testifies that it was his understanding- that Lanham ivas Grafton’s employe, and that he never had any reason to believe otherwise. Under this state of facts, of course; there was no right to recover against Lanham, for it is too well established to require the citation of authority that where an agent acts within the scope of his authority for a known principal-he incurs no personal liability.

Upon the trial of the case the court gay on-behalf of the plaintiff certain instructions which are complained- of. Some-of these instructions told 'the jury' that if they found from the -evidence that Penix performed services for' the defendants he' was entitled to recover the reasonable value of such services. It is objected that these instructions are improper, not'only becáúsé they told the jury that theymight find -a verdict against the de*283fendant Lanham, against whom there is no evidence, but also because they entirely ignore Grafton’s defense. They permit a recovery; in fact, they bind the jury to find for the plaintiff if they find that he performed services for the defendants, and that he performed these services for the defendant Grafton, at his request, is undisputed. So that these instructions were in effect mandatory. So far as Lanham is concerned it was error to give the instructions because there was no evidence upon which to base them, and it is well settled that an instruction should not be given unless there is evidence of the hypothesis therein stated. This objection, however, it may. be said, only applies to Lanham. While there is no evidence to justify the giving of the instructions so far as he is concerned, there is evidence on the part of the plaintiff supporting his theory of the case against the defendant Grafton. But the vice of these instructions, so far as the defendant Grafton is concerned, is that they entirely ignore his defense. An instruction which binds the jury to find for the plaintiff which ignores a substantial defense supported by evidence should not be given. In other words, in order to make a binding instruction proper it should include in it every hypothesis which the jury is required to find in order to such a recovery. In this case the jury could not find for the plaintiff unless they also found that the walnut logs furnished by Penix were not furnished under the contract, and that the contract had been abrogated upon a sufficient inducement by the mutual consent of the parties. An instruction given for the defendant presents this theory of the ease, but it is in direct conflict with the instructions given for the plaintiff. It is improper to give instructions for the respective sides to the controversy which are in direct conflict with each.other, for it allows the jury to select which of the instructions it will follow, and leaves the court in doubt and uncertainty as to what facts were actually found by the jury as a basis for their verdict. Mylius v. Lumber Co., 69 W. Va. 346; Parkersburg Industrial Co. v. Schultz, 43 W. Va., 470; Ward v. Brotan, 53 W. Va., 227; McMechen v. McMeehen, 17 W. Va. 683; McKelvey v. Chesapeake & Ohio Railway Co., 35 W. Va., 500.

It is urged by the defendant Grafton that the evidence sub*284mitted by the plaintiff was insufficient to justify the finding of the jury in favor of the plaintiff, and we are asked to so hold. In view of the fact that the case must go hack for a retrial for the. errors above pointed out it would be improper for us to make any comment at this time upon the weight of the evidence offered by either of the parties. On another trial it may be different, or may be supplemented so that any comment on it in its present shape might be entirely inapplicable to the presentation made on such new trial. '

For the reasons above pointed out the judgment of the circuit court complained of will be reversed, the verdict of the jury set aside, and the case remanded for a new trial.

Reversed, verdict, set aside, and remanded.