71 W. Va. 250 | W. Va. | 1912
This is an attachment suit in equity to collect a debt of $883.04 for an alleged sale of logs, brought on the ground that defendant is a non-resident. Prom a decree pronounced on the 35th of May, 1907, dismissing his bill, plaintiff has appealed.
The decision of the case turns upon the question whether or not title to the logs had passed to defendant. They were carried off by a flood in the Little Kanawha river in January, 1905, and lost, hence this suit.
■ On the 15th of December, 1906, the cause was referred to a master commissioner to take, state and report whether or not there was an executed contract of sale between the parties, and also all matters in difference between them. The commissioner reported that there had been, in fact, no sale of the logs in question, but reported a balance of $16.38 was due plaintiff from defendant for channeling other logs purchased at another time,
The alleged contract of sale is oral, and the testimony respecting it is conflicting and voluminous. We are asked to reverse the decree of the lower court on a question of fact, supported by the finding of a commissioner based upon conflicting testimony. According to the well established rule, we should not reverse such decree unless we are satisfied that it is against a clear preponderance of evidence; we must see that it is clearly wrong.
‘‘Where questions purely of fact are referred to a commissioner, his finding will be given great weight, though not as conclusive as the verdict of a jury, and should be sustained, unless plainly not warranted by any reasonable view of the evidence. This rule operates with peculiar force in an appellate court, when the findings of a commissioner have been approved by the court below.” Reger v. O’Neal, 33 W. Va. 159. This rule has been re-announced, in varying phraseology, many times since that decision. Wolfe v. Banlc, 54 W. Va. 689; Baker v. Jackson, 65 W. Va. 282. Even when the question of fact found.by the lower court has not been reported by a commissioner, this Court will not reverse its decree, upon conflicting testimony, unless it is satisfied that the finding is decidedly against the weight of evidence. Kennewig Co. v. Moore, 49 W. Va. 323; Naughton v. Taylor, 50 W. Va. 233. Much less, then, is the appellate court disposed to do so when the finding of the court is supported by the previous finding of a commissioner. .Such a decree, although not entitled to so much consideration as the verdict of a jury, found on conflicting testimony, is nevertheless entitled to great respect.
The evidence in this case fills more than six hundred pages of the record; to review it in this opinion would be a waste of time, and would encumber the reports with useless matter. It suffices to say that we have carefully read and considered it,' and we do not think the court erred in holding that plaintiff’s
Defendant had a boom in the Little Kanawha river near Burnsville, operated a veneering mill at that point, and bought logs to be manufactured at his mill, but not for the general market. His agent, C. L. Sample, had bought logs from plaintiff which were delivered at various points along the river, above Burnsville, on a number of previous occasions, at the price of fourteen, fifteen and sixteen cents per cubic foot, according to the points of delivery. The logs were then measured and branded and paid for. A number of different purchases were made in this way, and'in every instance, except the first, the logs were measured and branded by the purchaser before any payment was made. The first purchase was made and the price paid, upon estimate only; the estimate proved to be more than the actual quantity, and plaintiff returned the difference in cost as soon as the correct amount was ascertained by actual measurement. The measuring and branding of the logs, before paying for them, is a very potent circumstance tending to prove that the parties did not regard the sale complete until that was done; measurement was necessary to ascertain the amount of money to be paid.
Plaintiff testified that there were about 200 logs included in the particular sale in question; that they aggregated about 5,60ñ cubic feet; that he was to receive sixteen cents per cubic foot and that the sale was consummated on the 20th of January, 1905. A. D. Shock, plaintiff’s cousin, was present when the alleged sale took place, and testifies to the oral contract between the parties. But neither plaintiff nor Shock says that any price per cubic foot was agreed on. They both testify, however, that Mr. Sample addressed a letter to Mr. Tory, defendant’s measurer, directing him to measure the logs, and delivered it to plaintiff to be carried to Mr. Tory; and plaintiff says he delivered it. The letter is made evidence, and Mr. Sample admits writing it; but he says no price for the timber was then agreed on, and that the arrangement was not different from other agreements for the purchase of timber, made on previous occasions; that is, that defendant was not bound' for any- logs until they were measured and branded with his brand. Sample’s
“The question, whether a sale of personal property is complete or is only executory, is to be determined from the intent of the parties as gathered from the contract, the situation of
After a careful consideration of the testimony to which we have been cited in briefs of counsel, to sustain their respective contentions, we see no reason to disturb the decree of the lower court. We, therefore, affirm it..
Affirmed.