89 W. Va. 622 | W. Va. | 1921
This action of assumpsit was brought to recover on a negotiable promissory note for the sum of $375.00 executed by the defendants to one T. G. Baker, and by him endorsed to the plaintiff. The defendant John L. Whitmore, the principal debtor, the other defendant, his wife, being only surety, filed a plea of offsets, and upon a trial of the matters involved before a jury a verdict was found in favor of the defendant for the sum of $1125.00 upon which judgment was duly rendered, to review which this writ of error is prosecuted.
There is no conflict in the evidence. The testimony offered by the plaintiff to establish the note sued upon is not questioned; neither is the evidence offered by the defendant John L. Whitmore to establish his offset. The facts disclosed by the record are that Whitmore entered into a contract with the plaintiff by which he agreed to cut for it certain pulp wood at certain prices, the agreement being that the plaintiff would furnish him from week to week advancements of money sufficient to meet his expenses, these advancements to be deducted from the amount due him when the wood was received by the plaintiff, and the quantities definitely ascertained. Under this arrangement advancements of considerable sums were made to Whitmore by Baker, the agent of the plaintiff. At the time of giving the note sued on in this case Whitmore applied for an advancement to take care of the wages due his men. Baker, representing the plaintiff, advised that he could not make any further advancements without security; that the wood all remained in the woods, and because of the severe weather the plaintiff had been unable to take the same up, for which reason no insurance could be obtained thereon, and should it be destroyed the loss would fall entirely on the plaintiff without any means of protecting itself. Whitmore agreed to give his note evi-
The plaintiff further insists that the judgment should be reversed and the verdict set aside for the reason that it does not respond to the issues in the ease. The verdict was simply a finding in favor of the defendant for the sum of $1125.00. The argument is that this does not definitely determine the plaintiff’s claim which was set up and unde-nied, nor does it indicate which defendant the finding is in favor of.. It is quite true, the verdict does not in terms dispose of the plaintiff’s claim, but the record discloses very clearly that the matter involved upon the trial was the bal-anee due, if any, to the defendant J. L. Whitmore because of the material furnished by him to the plaintiff, and the verdict necessarily determined all of the matters submitted by the parties upon this question, including the note sued, upon, which had been given to secure an advancement made by the plaintiff to the defendant Whitmore. In Black v. Thomas, 21 W. Va. 709, it is held that where in an action of assumpsit the defendant pleads payment and files with his plea a specification of sets-off exceeding in amount the demand of the plaintiff, and the jury by its verdict finds for the defendant a gross sum, under the provisions of § 9, ch. 126 of the Code, such verdict is interpreted as a finding that the set-off exceeds the amount to which the plaintiff was entitled by the sum so found, and the verdict is not ambiguous. This is bound to be the case for the record discloses that the matter to be determined by the jury was the status of the accounts between the parties, and their verdict can be interpreted in no other light than as ascertaining that the plaintiff owed the defendant $1125.00 more than it had advanced to him. It means this and nothing else.
Nor is there any merit in the plaintiff’s contention that the
There is no more merit in the plaintiff’s contention that the evidence does not justify the verdict. The plaintiff insists that the verdict is excessive and cannot be justified. To reach this conclusion, hoivever, he gives the plaintiff credit for all of the advancements which the defendant Whitmore .says were made to him, and then gives the plaintiff additional credit for the $375.00 note without any evidence to justify treating the note in any other way than as a part of the advancements. In fact, the uncontradicted evidence is that it was made as an advancement, and presumably it was included in the amount shown as having been advanced by the company to Whitmore.
Finding no merit in any of the plaintiff’s contentions, we affirm the judgment.
Affirmed.