80 W. Va. 426 | W. Va. | 1917
The declaration in assumpsit, by setting the same out in full therein, averred a contract between plaintiff and defend'ant, with mutual promises and undertakings, and whereby-for the consideration of thirty cents per cubic yard to be paid plaintiff by defendant, as provided therein, plaintiff agreed to supply sufficient teams and to haul from the barges or flats of the defendant to the site of the construction work all the sand and gravel that would be required each day by
And by way of averring performance of said contract by plaintiff and breaches thereof by defendant, it is further alleged that plaintiff had always from the time of making said contract performed and fulfilled the same in all things required to be done on his part, that on the day appointed by said contract and at great expense he- provided all teams, wagons, and other materials necessary and entered upon and commenced said work, and did perform .the same in part by hauling and delivering about three hundred and fifty cubic yards of said sand and gravel to the satisfaction of defendant, and had always thereafter been ready and -willing to perform and complete the hauling of said sand and gravel, as required by said agreement, and of which defendant had notice. Nevertheless, as it is further averred, defendant, .contriving and wrongfully intending to injure plaintiff did not and would not perform the said agreement, promises and undertakings on his part, but craftily and subtly deceived plaintiff in that he did not and would not keep sufficient sand and gravel at said barges or flats to keep said teams busily engaged or to meet the demands of the said
The judgment below overruling defendant’s demurrer to the declaration is relied on here as error calling for reversal. Several points are urged. (1) That it is not disclosed how plaintiff proposed to treat the contract, (a) whether as rescinded, and to recover on the quantum meruit for the work done, (b) or as kept alive for the benefit of both parties, and himself ready and able to perform, and at the end of the time for completion of the contract to recover under the contract, or, (e) to treat the breach or breaches, of the contract by defendant as putting an end to it for all purposes of performance and to sue for the profits he would have realized if he had not been prevented from performing it; (2) that it charges a violation of the contract between the Crossan Construction Company and defendant to which plaintiff was not a party, wherefore multifarious; (3) that it avers a discharge of plaintiff by defendant from performance or completion of the contract when the fact is plaintiff was not employed by defendant, that the breaches are not positively averred but by way of” recital only, that it is alleged that ‘ ‘ defendant did not keep sufficient sand and gravel at said barges or fiats to keep the said teams busily engaged”,
On the first point it is quite clear from the averments that plaintiff did elect to treat the contract as repudiated and at an end for all purposes of performance and to sue for profits, in accordance with the rule laid down in Bare v. Victoria Coal & Coke Co., 73 W. Va. 632. True, as stated in point 4, there is an averment of failure on defendant’s part to keep sufficient sand and gravel at the barges or flats, but this was in anticipation perhaps of the defense that plaintiff did not as provided by the contract haul all the sand and gravel required each day in the work of constructing said railroad, and as averring one of the means employed by defendant to prevent him from carrying out his contract. The main averment on which plaintiff relies is that defendant discharged him and would not permit or suffer him to proceed with the work of completing the contract. We think these general averments sufficient within the rule of Bare v. Victoria Coal & Coke Co., point 1 of the syllabus, supra, to save the declaration from attack by demurrer and to put the demurrant on his defense of pleading to the issue.
The other points of demurrer are sufficiently covered by what has been said upon the first point more or less involved therein. Besides, they are extremely technical and have no substantial merit therein.
The giving and refusing of instructions to the jury is especially relied on for reversal. At the instance of plain
Instruction number two, in substance is that if the jury find from the evidence that plaintiff and defendant entered into the contract in writing shown in evidence, and whereby plaintiff was to haul the sand and gi’avel therein.mentioned, and was to be paid therefor by defendant at the rate of thirty cents per cubic yard, and that plaintiff commenced the performance thereof and continued to haul said sand and gravel for the period of three days in the manner provided in the contract, and that on the fourth day he offered to proceed t.hemvith and in the manner and as required by said contract, ■when he was prevented by defendant from further performance and from completion of said contract, and -was discharged by him therefrom, such action on the part of defendant constituted a breach of the contract by him, and an action thereby accrued to plaintiff entitling him to recover against defendant the difference between what it would have cost him
But is there any evidence in the case on which to predicate these two instructions ? It is contended on behalf of defendant that there is not. The verdict of the jury amounted to a finding that there was such evidence. On the first instruction the amount of damages found by the jury, $766.00, was substantially the sum proven by the defendant that plaintiff might reasonably have made by completing the contract, based on the quantity of sand and gravel which he admitted was actually consumed in the construction of the section of the railway referred to in the contract, at the rate of ten cents per cubic yard profit. Plaintiff undertook to prove a much larger sum, but the jury were .evidently quite conservative in their- estimate, and seem to have limited their verdict to the sum proven by defendant’s evidence. So we think there can be nothing in the contention that the evidence did not warrant the first instruction.
But what of instruction number, two ? Was there evidence justifying it? Defendant’s instructions numbered five, six, thirteen, and fifteen, given, covered in all phases'the contentions thereon and propositions relied on by him, so that the law'of the case was fully and clearly, given in these charges to the jury. It is fully proven and defendant admits that he discharged plaintiff and would not permit him after the third.day to proceed with the performance of the contract. He undertook to justify his action on the ground that plaintiff did not supply a sufficient number of teams and wagons and of the proper kind to perform and comply with the contract upon his part, and as called for by the contract between him and the construction company, and that beginning with the first day and continuing on the second and third day, •complaint was made by the Crossan Construction Company, the last complaint being in the form of a notice in writing to the effect that the delivery of the material was not at all satisfactory and unless other arrangements in regard to teams
Without further detailing the evidence it is sufficient to say we are satisfied plaintiff was honestly disposed to faith- . fully perform his contract, and was as well equipped to perform if as it was performed afterwards by defendant, and as was really contemplated considering the circumstances and •conditions at the works; and it was for the jury to say under all the facts and circumstances whether defendant was .justified in breaching the contract and depriving the plaintiff of an opportunity to execute the same and of the profits to be derived therefrom. So we conclude that there was evidence justifying the plaintiff’s instruction number two complained of.
Plaintiff’s instruction number three told the jury in sub- . stance that he was not seeking to recover anything for work :-actually performed by him under the contract, but damages for being so prevented by defendant from completing the
With respect to instruction number four, one of the defenses was that on the day of plaintiff’s discharge defendant had paid him by cheek $83.40,' with a memorandum on the face of the check, “in full of acts.” Defendant’s contention before the court and jury was that this constituted a settlement of all claims for damages or otherwise that the plaintiff might have against him. Plaintiff’s claim was that this check simply covered the actual work done by him, less what was deducted for the teams of the Crossan Construction Company, and this, indeed, according to the evidence, was the actual fact. Plaintiff did not in terms undertake to release his claim for damages, and at all events he denies that such was the agreement. By instruction number four the jury was told that such check with the memorandum thereon was in the nature of a receipt and like other receipts was subject to explanation or contradiction by extraneous oral evidence. This is clearly the law respecting receipts, as many times decided. Anderson v. Davis and Ould, 55 W. Va. 434; Art Co. v. Thacker, 65 W. Va. 146.
The theory of the defendant respecting this check, that it included all claims for damages arising out of the contract, was fully covered by his instructions numbered two and ten, which also laid down the rule respecting the burden of proof in such cases. So the two theories were fully covered by instructions to the jury, and we cannot say that the verdict in favor of the plaintiff thereon was not supported by the proof. And what has been said in this connection with respect to plaintiff’s instruction number four, and defendant’s instructions on the same subject, applies also to plaintiff’s instruction number five relating thereto.
Plaintiff’s instruction number six relates .to the burden of proof, on the issues in the case and correctly states the law on this subject.
The next points of error relied upon for reversal relate to
Another point relied on is that the court permitted plaintiff, over defendant’s objection, to introduce in evidence the contract between the defendant and Crossan Construction. Company. As this contract was referred to in the contract, between plaintiff and defendant, and the plaintiff was required by his contract to furnish the sand and gravel as required by that contract, and one of the provisions thereof relating to “stock ground” or “site” was entitled to some probative value in the disposition of the case, we can see no error in the admission of this contract, and we think plaintiff was entitled to have it go in evidence for such probative value as it was entitled to.
Lastly, it is complained that the court erred in overruling defendant’s motion to set aside the verdict and award him a new trial. What has already been said in response to the other points of error constitutes sufficient ground for negativing this last point.
Our conclusion, therefore, is to affirm the judgment.
Judgment affirmed<