86 Va. 374 | Va. | 1889
delivered the opinion of the court.
The facts, as shown by the record, are, that in Juue, 1866, William Reherd, then alive and about ninety-four or ninety-five years of age, delivered to Clem & Wenger, in their merchant flouring mill in Harrisonburg, Va., 701.51 bushels of wheat, which was received by Clem & Wenger and mixed indiscriminately with other wheat of the same grade, for which wagon receipts were given, as the wheat was delivered; and after it was all so delivered, the following paper was sent to William Reherd in [>lace of the several wagon receipts, viz. :
" Received, June 4th, 1886, of William Reherd, seven hundred one and 51- of Ho. Two wheat in store, less five bushels paid Isaac Billhimer, for which we are to pay market price same quality of wheat Avhenever Mr. Relierd whnts to sell same. ' CLEM & WENGER.”
701, 51-60
5 Billhimer
696—51-60 Balance.”
The mill was destroyed by fire December 23d, 1887 : there were 5,000 or 6,000 bushels of wheat in the mill at the time of the fire, of which 600 or 1,000 bushels was Ho. 2 wheat, separated and to itself, in the western or railroad garner. The
Clem & Wenger failing to pay for the wheat, this suit was brought by the administrator of William Relierd, deceased, to compel them to pay.
Upon the trial of the case, the defendants, Clem & Wenger, pleaded that they were not purchasers of the wheat, but were bailees thereof; and that, according to the contract, evidenced by the receipt given by them to William Relierd for the wheat they received, they held it in store for him when the mill was destroyed by fire December 23d, 1887, from the day of its delivery in their mill, June 4th, 1886, a period of over eighteen months.
The most important question presented in this case arises on the instruction asked for by the plaintiff and refused by the court, as follows : “ If the jury believe from the evidence that William Relierd in his life time delivered the wheat which is the subject of controversy into the mill of the defendants, upon a contract with the defendants, that they, the defendants, should pay for the same in money at the market price whenever the
The court refused to give this instruction, and then gave the following instruction to the jury, at the request of the defendants, without construing the said receipt therein referred to and defining its legal import: “Tf the jury believe from the evidence that William Reherd, plaintiff’s intestate, accepted and received the receipt signed Clem & Wenger, dated June 4th, 1886, as evidencing the terms and conditions on which he placed the wheat in controversy in Clem & Wenger’s mill, said William Reherd is bound by the terms and conditions set forth in said paper, although he did not sign it.”
The jury, after hearing the evidence introduced in the cause* rendered a verdict in favor of the plaintiff for $165, with interest thereon from February 4th, 1888; and thereupon the plaintiff moved the court to sot the verdict aside as being against the law and the evidence, and to grant a new trial; which motion the court overruled and entered judgment upon the verdict. To this judgment the case is here upon a writ of error.
The verdict rendered by the jury cannot be sustained by either the law or the facts of the case as presented by the record.
The first assignment of error is as to the competency of Clem & Wenger, who, though parties to the contract with William Reherd, deceased, were permitted by the court to testify in the suit upon the contract against the objection of the plaintiff—that they were incompetent witnesses under see. 3346 of the Code of 1887.
The pretension that William IT. Rickard was the agent of William Reherd, deceased, the plaintiff’s intestate, is not sustained by the evidence; but, on the contrary, Clem himself testifies “that he never had any conversation with W. H.
W e are of opinion that it was error in the circuit court to refuse to give the instruction asked for by the plaintiff. The receipt in evidence in the suit is ambiguous, and is susceptible of explanation by the evidence which was before the jury as to the transaction between the parties in the making of the contract, and as to the conduct of the parties in acting under the contract after it had been made; and there being evidence already given to the jury not only tending to prove the case supposed in the instruction asked for, but fully and clearly proving it, the duty of the court was to instruct the jury that,
The circuit court erred in not granting the motion of the plaintiff for a new trial, and the verdict of the jury must he set aside, and a new trial ordered, and the judgment must be reversed and annulled.
Lewis, P., dissented.
Judgment reversed.