55 W. Va. 246 | W. Va. | 1904
A. L. Calhoun, doing business at Keystone, McDowell County, under the name and style of “Union Bargain House,” which name, together with the addition, “A. L. Calhoun, Proprietor, H. A. Womack, Manager,” was displayed on a sign on the front of the building in which the business was carried on, began to purchase boots and shoes from the Henry C. Werner Company, of. Columbus, Ohio, in June or July, 1898, at the solicitation of W. T. Watkins, its traveling salesman, and continued to do so at intervals, and also to run and operate the said store, until the first day oí September, 1899, on which day he sold the store to C.. Womack, a brother of H. A. Womack, who seems to have been about the store prior to. that time, and, just before the
The two instructions refused form the basis of the principal part of the argument in the brief for the plaintiff in error. They read as follows:
“2. The court instructs the jury that before they can find for the plaintiff in this case, they must believe from the evidence in this case that H. A. Womack, a,t the time of the purchase of the goods, the price for which this action is instituted, was the agent of A. L. Calhoun, and as such agent had authority to purchase the said goods, or that the said Calhoun received and accepted said goods and unless they do believe, from the evidence, that the said Womack was the agent of said Calhoun, and had authority to purchase the said goods, or that the said Calhoun received the goods and accepted them, then they must find for the defendant.”
“3. The court instructs the jury that if they believe from the evidence in this case that The Henry C. Werner Co. or W. T. Watkins, the salesman of said company, knew that the said H. A. Womack was the agent of said A. L. Calhoun, and that the goods were purchased by said Womack, it was the duty of the plaintiff to ascertain the extent of the agency of said Womack; that they dealt with said Womack at their own risk, and if they believe from the evidence that the said Womack exceeded his authority as agent for said Calhoun, then they must find for the defendant in this case, even though they may believe that said Calhoun was the owner of The Union Bargain House at the time of the. purchase of said goods.”
Some of the goods were purchased before, and some after, the
A proper instruction, directing an inquiry by the jury as to what were Womack’s powers as agent of Calhoun before September 1, 1899, and a finding in favor of the defendant as to the purchase money of goods bought after that date, if they believed from the evidence that the' plaintiff or its agent knew Womack had had no authority to purchase goods for the store, while the defendant owned it, could, have been so framed as not to have been objectionable on the ground of tendency to mislead or confuse the jury, and the court would no doubt have given it, had a request therefor been made. On that issue evidence for both parties was introduced, but it is well settled law that a verdict wiil not be disturbed for want of a proper instruction not asked for. Nor is the court bound to modify an improper instruction asked for so as to make it good and then give it. Gas Co. v. City of Wheeling, 8 W. Va. 320; Rosenbaum v. Weeden, 18 Grat. 785.
The only real issue in the case is whether, upon retiring from the business of the “Union Bargain House,” Calhoun gave
Calhoun testifies that, while he owned the store, he paid the plaintiff by his personal checks, and the proof is that, after the date of the sale thereof, checks were sent to the plaintiff signed “Union Bargain House.” He offered to introduce in evidence one of the checks sent by him to the plaintiff, but the court excluded it. The court also refused to allow one of his witnesses fo answer the following question: “Do you know whether or not it was generally known in that town at that time that A. L. Calhoun had sold out?” These rulings are excepted to. Whether the court erred, and if so, whether the error is prejudicial, calling for a reversal of the judgment, depends upon the character of the notice which the law requires in such cases. •
Though this is not the case of a retiring partner, the rule in such case governs it. “Where one who has carried on business alone, under a firm name, sells the business to his son, who continues the business under the same name, the former is liable for goods purchased by the latter from an actual dealer with the former, who has no knowledge or notice of the transfer.” Elterson v. Leeds, 97 Ind. 336, (49 Am. Rep. 458). An analogous ease is that of McGowan v. American Tan Bark Co., 121 U. S. 575, in which the following instruction was approved as having
What is actual notice to which the dealer is entitled, and admissible evidence thereof, are questions now to be determined. The former is one of fact and not of law. No particular form or method of giving such notice is prescribed by law, although the usual mode is by letter to the dealer, apprising him of the fact of retirement. Vernon v. Manhattan Co., 17 Wend. 528. In the same case, on appeal, 22 Wend. 194, Senator Wager said: “As to persons having prior dealings, notice is usally given by a circular sent to all correspondents of the house, or in some other mode by which knovdedge of the dissolution may be brought to the creditor.” Dickinson v. Dickinson, 25 Grat. 321, holds: “Though a public notice of dissolution may be sufficient as to persons who have had no prior dealings with the firm, a person who has had such dealings must have notice, or actual knowledge of the dissolution, to release the partners who did not make or authorize the making of the note.” In the opinion, Judge Staples said: “If actual knowledge of the dissolution is brought home to the party, he will be concluded, although no notice whatever may have been given, whether in such case the evidence is sufficient to justify the inference of actual knowledge, is a question of fact for the consideration of a jury, under the supervision of the court. Irby v. Vining 2 McCord’s R. 379; Coddington v. Hunk, 6 Hill’s R. 595; Collyer on Partnership, section 332.” But manifestly the evidence must be more than sufficient to raise a mere suspicion of notice. It must be at least presumptive notice, calling for rebuttal. Accordingly it has been held that notoriety among business men and in the trade, much less in a community, is no evidence of actual notice, and is, therefore, inadmissible on the issue of actual knowledge
Upon this view of the law it is- apparent that the court did net err in excluding the cheek. The change in the signature from “A. L. Calhoun” to “Union Bargain House,” if noticed, would have imported nothing more than a change in the form of the bank account, or that Calhoun has two such accounts, either of which theories would have been clearly consistent with his continued ownership of the store. An inquiry from the plaintiff as to the reason for the change would have been an impertinence. The proposed evidence of notoriety of the change of ownership in the town of Keystone was no evidence, as has been shown, of actual knowledge or notice to the plaintiff of the fact, although its agent was frequently in the town, without direct evidence of his knowledge of the currency of the rumor, which might possibly have sufficed to put him on inquiry, but there is no evidence of such knowledge.
On Oie two issu.es of the extent of Womack’s agency while Calhoun owned the store, and notice of the sale by Calhoun to C. Womack, the evidence is conflicting and the credibility of the witnesses is involved. On a motion to set aside a verdict, .the trial court has a wider discretion than has this Court. Miller v. Insurance Co., 12 W. Va. 116; Ruffner v. Hill, 31 W. Va. 428; Grayson’s Case, 6 Grat. 712. But even there, the power should be cautiously exercised, and this Court will reverse the action of the court below in granting a new trial, “when the evidence is contradictory,' if, when most favorably considered in support of the verdict, it does not still appear, that the verdict was plainly not warranted by the evidence.” Gwynn v. Schwartz, 32 W. Va. 487; Reynolds v. Thompson, 23 W. Va. 229; Johnson v. Burns, 39 W. Va. 658. Where there is conflicting testimony, and the jury has to decide on the credit of witnesses, the power of the court to grant a new trial ought to be very cautiously exercised. Brugh v. Shanks, 5 Leigh 598. Whether there was actual notice depends upon questions of veracity between Watkins and Womack, Watkins and Calhoun and Watkins and Cobbs, and, although there were three against
On the question of the extent of Womack’s agency, the evidence is equally conflicting and the proof dependent upon the credibility of the witnesses, Watkins being corroborated by circumstances, and Calhoun’s testimony more or less inconsistent Watkins says he never saw Calhoun but once, but sold to Wo-mack on several occasions, and part of bis testimony was delivered while holding in his hands the original orders which showed that he bad made the sales at the store. Calhoun says he notified the company about six months before he sold out not to sell anything more to him except upon his personal order, but he had not paid for all the goods that were put in the store prior to the date on which he sold out and he does not specify any bill that was ordered by Womack without authority. At the same time, he protests that he has paid all the bills he owes the plaintiff. The goods had been put into the store presumably with his knowledge and sold by him along with the balance of his stock. Upon this state of the evidence, the Court cannot disturb the finding of the jury.
For the reasons aforesaid, the judgment will be affirmed.
Affirmed.