23 W. Va. 288 | W. Va. | 1883
In this case there was a demurrer to the declaration. I presume, however, it was put in by the defendant’s counsel, only as a matter of precaution, that no possible injury should be sustained by their client through their fault. They have in their arguments in this Court pointed out no errors or faults in this declaration. I have examined it and find it very full; but, so far as I can perceive, there is no error in it. It appears to be well drawn and to contain in it every allegation, which if proven would entitle the plaintiff: to recover what he demands. The municipal court therefore did not err in oveiT-uling this demurrer.
The plaintiff in error asks this Court to set aside the verdict of the jury, because under no view of the evidence, which can be taken, could a verdict for the plaiutiff of only three hundred and ten dollars be reached. It is insisted, that it is clear upon the evidence, that the plaintiff: is entitled to a verdict and judgment of several thousand dollars, or he is entitled to no verdict or judgment át all in his favor. It is admitted, that if the jury had found a verdict for the defendant, and the municipal court had rendered a judgment accordingly, this court on well established principles, could not have set this verdict and judgment aside and awarded a new trial, for there is clearly an abundance of evidence offered by the defendant, to which if the j ury gave full credence and deduced from it facts, which they could have legitimately drawn from it without subjecting themselves to the charge of prejudice or corruption, they would have found a verdict for the defendant. On the other hand, if the jury had found a verdict for the full amount claimed by the plaintiff', and fhe
The first enquiry is: Did the court below permit the defendant to the prejudice of the plaintiff to occupy too wide a field in the introduction of evidence, and by so doing confuse the jury and permit it to be unjustly prejudiced against the plaintiff? The complaint is, .that on the cross-examination of James Aiken the defendant required the production of his books showing all the wool, not only purchased by him for the plaintiff, Welch, but also that purchased by him
Upon this subject I think tíheplej’, judge, in pronouncing the opinion of the court in Lewis v. Hayden, 17 Me. 272, (5 Shepley) lays down the law corrctly. He says: “Is there any such rule of evidence as deprives the defendant of the right to discredit the witness, because on cross-examination he permitted him to proceed and relate the whole of the
Apply these principles to this case. The main question of fact in dispute was the quantity of wood in the warehouse, when it was burned. A legitimate mode of ascertaining this was to prove how much had been put into it, whether for the plaintiff or any one else, and subtract from that what . had been taken out and shipped, whether in the name of the plaintiff or any one else. With reference to this material fact the defendant had a right to fully cross-examine the plaiutifl’s witness, Jauies Aiken, and “ if his answer was not satisfactory, he might by any legal proof contradict or discredit them.” This the court below permitted the defendant to do by examining some dozen witnesses. Objection was made to the examination of only one, Jamos Endsley; and the court overruled the objection and permitted the witness to be examined to contradict James Aiken with reference to the wool, which he had purchased for persons other than the plaintiff, Welch, and which wool had been put into the warehouse. This was in reference to a material fact involved in the disputed question in the case; and I think the court did not err in overruling the plaintiff’s objection to the admissibility of the evidence. This no doubt opens a very large field for the introduction of evidence, but it seems unvoida-ble. The record shows that the defendant from the beginning disputed its liability for this loss, because, it asserted, James Aiken, who, it believed, was the half owner of the wool claimed to have been destroyed by this fire, was fraudulently pretending, that the quantity so destroyed was much greater than it really was, and had fraudulently made entries in his books to sustain him in this fraud. That this was the position of the defendant, the plaintiff was informed promptly
The plaintiff: again objects that the court permitted a number of witnesses to be examined as to fheir having knowledge of the destruction of wool by the burning ot buildings in other instances, and from the knowledge which they had thus obtained, permitted them as experts to express their opinion on the question, whether the burning of this warehouse on the night of the 21st and 22d of March, 1879, could have consumed entirely the quantity of wool that was claimed to be in it. No exception was filed to the introduction of the evidence of a number of these witnesses, but an exception was filed by the plaintiff to the introduction of the evidence of one witness, Leon Bryant, the adjuster of the defendant. The question objected to by the plaintiff which was propounded to this witness was: “If a frame building eighteen by twenty-two feet and a story and a half high, containing ten thoiisand or tvelve thousand pounds of wool in an upper story, should burn, state whether or not in your opinion the wool would be destroyed ?” The court overruled the objection and allowed the witness to answer the question; and he answered, that he did not think it possible that ten thousand pounds of wool could be consumed. in a building of this character. He further stated,, that he believed, that one-third of this ten thousand pounds of wool would have remained uneonsumed, if there had been that quantity in the building; and he therefore believed there was no such quantity of wool in the building, as all that was in it was consumed. He claimed to speak as an expert, because he had seen the debris of hundreds of thousands of pounds ot wool destroyed in burning buildings from Iowa to Massachusetts. Of facts, which require proof by means of indirect evidence, says Starkie, there are some of so peculiar a nature, that juries cannot without other aid come to a direct conclusion on the subject. In such instances, where the inference requires the judgment of persons of peculiar skill and knowledge on the particular subject, the testimony of such as to their opinion and judgment
These propositions of law laid down by Starkie are no doubt entirely correct; and in such a case, as he suggests, we must be allowed to resort to the evidence of experts, though, as we all know, even in such a case the evidence of experts is often contradictory and so unsatisfactory, as probably to furnish no real aid to a jury in reaching a just conclusion. But Starkie lays it down further, that when the enquiry relates to a subject, which does not. require peculiar habits of study, in order to enable a man to understand it, the opinion of skilled witnesses'is not admissible; and he is unquestionably right in this position.
The question is: To which class does this burning of wool belong? Does it require any peculiar study or opportunities of observation to enable one to understand the extent, to which wool is inflammable? It seems to me it does not, and one man knows about as much of the matter as another. The fact, that I have seen once or oftener the debris of wool consumed in a burning building, does not make me peculiarly skilled with reference to ,the extent of the inflammability of wool. The debris I have seen may show, that much of the wool was not completely consumed by the fire. But why it was not completely consumed, I cannot judge. It may be, because during the progress of the fire it was completely soaked with water, or because the fire was not a hot one, there being no wind blowing while the building was being burnt, or it may be the extent, to which the wool was consumed or left unconsumed depended on many other circumstances, of which I had no knowledge. The allowing me therefore because I have seen the debris of wool, which had been burnt in buildings, or had witnessed one or more fires, in which buildings containing wool had been burned, to express my opinion, whether a given quantity of wool could be completely consumed in the’ burning of a building of a particular size, is to permit me to pass a
The opinion of witnesses on such a subject too would no doubt be much influenced by their wishes and prejudices. Thus the witness, whose evidence as an expert on this subject, which the court permitted to be heard by the jury, and which was excepted to by the plaintiff, was the adjuster of the defendant, and thus perhaps naturally suspicious.and prejudiced in favor of his employer. The state of his mind in these respects may be judged of by a letter from him to the plaintiff, in the record, which he begins thus: “Dear SiR — Papers submitted by you to the Franklin Insurance Company of "Wheeling 'purporting to be proof of loss under an alleged policy claimed to have been issued by said company have been forwarded to me with your letter for answer.” The suspicious temperament-here indicated suggest, that the opinion of such witness would hardly tend to enlighten a
The court below in this case admitted without objection other proof of this character, a portion of which was introduced by the plaintiff. As might have been expected, these opinions of experts, as they are called, were in direct and' irreconcilable conflict. No such evidence should have been permitted to go to the jury. The able counsel for the defendant have found no decisions, in which evidence of this character or evidence in any way resembling this in cases of this character has been admitted, and the mere absence of any such decisions confirms me in the opinion, that expert evidence on such a subject should be excluded.
The court below in this case permitted the jury, when they retired, against the protest of the plaintiff, to take to their room the deposition of the witnesses, which had been read to them; and the plaintiff excepted to this action of the court. Did the court err in this? By the English practice depositions are never sent to the jury-room. A different practice has generally prevailed in Ohio. Their court of appeals in Stites v. Adm’r. of McKibben, 2 Ohio St., approve this Ohio practice and assign as their reason for so doing, “that it enables tíre jury to refresh their memory as to the testimony, which has been given. But the court may properly refuse to allow it,in some instauees, as where a part of the testimony contained in the depositions has been pronounced incompetent by the court, and as the jury might read this incompetent evidence, none of the depositions, which cannot be separated from it, ought to go to the jury. . If the reason why the court refused to permit depositions to go to the jmy does not appear, the appellate court will presume it was done for a good reason.” In Hansbrough et ux. v. Stennett, 25 Gratt. 495, Judge Anderson in delivering the opinion of the court, says: “The court can perceive no reason why a deposition, which has been read to a jury, may not be given to the jury on their retirement, if what is objectionable has been erased.” This is all that is said by him on the subject.
The Code of West Virginia ch. 131 § 12, p. 627, provides,
It remains only to decide whether the court erred in refusing to grant the second instruction asked by the plaintiff’s counsel. That instruction was as follows: •
“If the jury believe from the evidence that the arrangement between Welch and Aiken under which the wool in controversy was bought and held, was that expressed in the letter of July 11, 1878, then while there was a partnership between Welch and Aiken in the profits or the losses of the transaction, still the interest of Welch in the wool itself was the entire, sole and unconditional ownership- within the meaning of the policy introduced in evidence.”
The terms of this arrangement as set out in this letter, were: “D. B. Welch was to furnish the money; James Aiken was to buy the wool, handle it, store it, bear half the-expense of insurance, interest, &c., and James Aiken 'was to get therefor one half of the profits, and he was to bear one half of the losses. D. B. Welch was to hold the wool bought as his own to secure him in the transaction.” This, it seems to me, is the plain meaning of this letter and almost the identical language used in it. The question for consideration is: Bid Aiken under this arrangement have any ownership of the wool purchased by him under this arrangement with Welch? Uow, as I undertand the law, there may be apart-nership in the profits or a partnership in the piofits and losses of an enterprise or adventure between the parties themselves, and yet they may not be partners in the capital stock, but it may belong exclusively to one of them; and if this be the understanding or agreement between the parties, the law will permit one partner to be and continue the exclusive owner of the capital, while yet there may be a partnership in the profits and losses coming out of the enterprise. To sustain this position Story in his work on Partnership refers to ex parte Hamper, 17 Ves. 403.
Where there is a positive agreement between the parties to this effect, that of course will govern. But if there is no such agreement and no implication from the circumstances
27ow these principles are, it seems to me, as clearly illustrated and as forcibly set forth in the above cases cited as reported in 2nd Barnewall & Cresswell as anywhere else, and I will give below the syllabus in Smith v. Watson, 9 E. C. L. R. 122: “An agreement between A., a merchant, and B., a broker, that the latter should purchase goods for the former and in lieu of brokerage should receive for his trouble a certain proportion of the profits arising from the sale, and should share a proportion of the losses, does not vest in B. any share in the property so purchased or in the proceeds of it, although it made him liable as a partner to third persons.” These views I have expressed receive more or less support from Emmons v. Westfield Bank, 97 Mass. 230; Citizens Fire Insurance, Security and Land Co. v. Doll, 35 Md. R. 90; Boutelle v. Westchester Fire Co., 51 Vt. R. 10; Keiser v. State,
The conclusion, it seems to me, to be drawn from these cases is, that the question, whether an agreement between two parties constitutes them partners as between themselves only in the profits and losses of the business, or partners also in the property or capital invested in the business, depends for its answer entirely upon the intention of the parties to the agreement; and if the intention of the parties is not expressed explicitly in the agreement, if one is to furnish all the property or capital, with which the business is to be carried on, and the other furnishes only his labor in carrying-on the business, the prima facie inference is that the parties are to be regarded as between themselves as partners in the profits aud losses in the business and not as partners in the property or capital, with which the business is carried on, unless in the agreement of the parties or in their subsequent conduct of the business there be a clear indication, that the parties were to be regarded or regarded themselves as partners in the property or capital with which the business is conducted and in the absence of such indication in the agreement or in the conduct of the parties when the property or capital, with which the business is conducted, is fur-
Applying this principle to the facts proven in this case my conclusion is, that on the face ot this letter of June 11,1878, if it is the agreement, on which this business of buying and selling wool was to be conducted by Welch and Aiken, they can be held as between themselves to be partners only in the profits of this'business and that Welch is to be regarded as having the entire, sole and unconditional ownership of the wool, which was purchased. This follows from the furnish-, ing of all the capital by Welch, with which this wool was purchased, and from the-fact that the compensation of Aiken for his labor and skill in purchasing, handling and storing the wool was to be one half ot the profits arising from its sale. This presumption is not rebutted by the fact, that he was to sustain one half of the losses, if any occurred. I regard the fact, that one half of the expenses, interest on the money used in buying the wool, &c., were to be as it were charged to Aiken in the settlement, as in no manner affecting the agreement or the relations of these parties ‘to each other, or to the property purchased; for even had this been left out ,of this agreement, it would necessarily have been implied, as one half of the profits or losses could only be ascertained by charging Aiken with one half of the insurance, interest, &c.
There is some evidence tending to show, that this letter does not express truly the real understanding between these parties as to the character of this business and the relations of the parties to each other; and that there -was an understanding further that they were to be joint owners of the property purchased. But if this letter, as these parties testify, expressed truly the terms of their arrangement for carrying on this business, then Welch was. to be held as having the entire, sole and unconditional ownership of the wool purchased with his money; and the second instruction offered by the plaintiff ought to have been granted by the court. I am therefore of opinion, that the municipal court erred in refusing to grant this instruction.
For these reasons I am of opinion that the verdict of the
REVERSED. Remanded.