72 W. Va. 328 | W. Va. | 1913
Claiming the right to recover from J. T. Lovett $213.68 as an overpayment to him on account of purchase money for lumber, or, in other words, for a shortage in the lumber, the Eoane Lumber Company sued him before a justice of the peace and recovered a judgment for said sum, from which Lovett appealed. On the trial in the circuit court, there was a verdict for the defendant which the court set aside. Later, after the death of Lovett and revival against his administrator, the ease was submitted to the court in lieu of a jury, upon the evidence adduced upon the first trial, which had been made part of the record for the purposes of an application for a writ of error, by proper bills of exception, and the court rendered a judgment for the plaintiff. The administrator seeks reversal thereof and also of the order setting aside the verdict, re-instatement of the verdict and judgment thereon.
The vital inquiry here is, whether the trial court erred in setting aside the verdict. If it did, the order setting it aside will have to be reversed, with re-instatement of the verdict, and judgment upon it for the defendant will follow, together with reversal of the judgment rendered for the plaintiff. In support of the motion to set aside the verdict, six grounds of error were assigned, admission of improper evidence for the defendant, rejection of proper evidence offered by the plaintiff, refusal to give proper instructions asked for by the plaintiff, the giving of improper in-
.In the bill of exceptions, the court certified the failure of the plaintiff to make any objection to the rulings on instructions or take any exceptions thereto, until after the jury had rendered its verdict. If the court'based its action upon the rulings respecting instructions, the failure to object or except until after the verdict, might not be material upon the present inquiry, for a trial court can no doubt set aside a verdict of its own volition upon its own motion, if it perceives error in the instructions which misled the jury. The province of the court goes beyond action as umpire in a mere game or contest between the parties litigant. Its proper function is to effectuate right and justice between them within the limits of legal rules and principles. Thomp. Trials (2 ed.), sec. 2711; McCabe v. Lewis, 76 Mo. 301; Hensley v. Davidson, 135 Ia. 100; Weber v. Kirkendall, 44 Neb. 766; Railway Co. v. Donovan, 110 Mich. 173; Ellis v. Ginsburg, 163 Mass. 143; Richmond v. Wardlaw, 36 Mo. 313.
The court refused but one instruction asked for by the plaintiff and that was obviously bad. The bill of exceptions does not show any instructions at all given for the defendant. 'If the plaintiff was prejudiced by the giving of any erroneous instruction against' him so as to warrant the court in setting aside the verdict, such instruction should have been made a part of the record. Five instructions given for the plaintiff seem to.have submitted to the jury fairly and fully its right to recover. Nothing perceived in the rulings on instructions justifies the ruling on the motion to set aside the verdict.
A supposed error in the admission of evidence for the defendant appears to have been the ground upon which the court based its action in respect to the result of the first trial. This related to a minor and subsidiary issue as to the time of the making of the contract for the sale of the lumber, Lovett claiming it to have been made on Friday or Saturday, November 13 or 14, 1905, notwithstanding the receipt given by him was dated on Monday, November 16, 1905. He claims the voucher and receipt' were prepared on Friday or Saturday and he began hauling the lumber on Monday, but took the precaution to obtain payment ;and sign the receipt on Monday, before any lumber was actually de
The obvious purpose of this testimony was to corroborate and sustain Lovett’s testimony as to the time and circumstances of the consummation of the sale against the contradictory testimony of Einehart and Moore. The declaration was not offered, for the purpose of proving the same to have been made on Friday or Saturday, -nor was it competent evidence for that purpose. Nevertheless, it had a natural tendency to corroborate the statement of Lovett as to the time of the sale. It was a verbal act, a circumstance sustaining the testimony of Lovett against the attack made upon it by the testimony of plaintiff’s witnesses. It did this by its tendency to prove his credibility. Such evidence is not obnoxious to the hearsay rule, nor excluded by it, because it is not testimonial evidence, — not evidence adduced for the purpose of proving the facts in issue. Wig. Ev., secs. 416, 1791. In the former section, the author says: “It often happens that a place
The verdict is not contrary to the evidence nor to the instructions of the court. The evidence adduced on the vital question, whether Lovett sold the lumber upon the inspection made by Hill for the purpose of a sale to other parties which had not been consummated, without any right on the part of the purchaser to regrade it, under a different set of inspection rules, was oral and directly conflicting. It depended upon the credibility of the witnesses, and there were no controlling facts admitted or clearly established by evidence. Under such circumstances, a trial court cannot properly set aside a verdict. Coalmer v. Barrett, 61 W. Va. 237; Fulton v. Crosby-Beckley Co., 57 W. Va. 91. Admitted facts seem rather to sustain the testimony of Lovett. The lum
Our conclusion is to reverse the judgment for the plaintiff rendered on tlie 27th day of May, 1910, fl-nd the judgment of June 7, 1909, (Setting aside the verdict of the jury, re-instate the verdict and render judgment for the defendant in conformity therewith.
Reversed and Judgment for Defendant.