90 W. Va. 67 | W. Va. | 1922
From a judgment against him of nil capiat rendered by the circuit court of Lincoln County on the 14th day of December, 1920, plaintiff prosecutes error.
The summons was in assumpsit, and the declaration avers that defendant entered into a written contract with plaintiffs by which the latter were to build and construct the grade for a certain county road between East Hamlin and West Hamlin for which defendant promised to pay certain stipulated prices for various items of the work, and for certain material used by plaintiffs therein such as concrete culverts, pipes, drain tile, and the like; and that defendant agreed to furnish grade line stakes and guides by which to carry on the work, and cause estimates of the work to be made each month by an engineer, on which payments were to be made on or before the 20th day of each month; but that defendant failed to carry ont its contract in that it failed to furnish grade lines, stakes and locations, refused to make up said estimates and refused to make payments as agreed, by reason of which failures plaintiffs were damaged $10,000.00; and that plaintiff had performed work under contract amounting to $34,-856.10 but that defendant had failed to pay for same except such credits as were shown by an account filed with the
An instruction was offered by defendant to the effect that if the jury believed that plaintiffs failed to complete the work provided for in the contract, and that defendant on account thereof was compelled to readvertise and relet the
One of the grounds assigned as error is that the court “allowed the recoupment to go to the jury without evidence to support it.” We do not perceive the relevancy of the objection. If the evidence was excluded, plaintiff was benefited and cannot complain. Certainly defendant had the right to file notice of recoupment and attempt to introduce evidence to sustain it. There was evidence tending to show that up to September 5, 1918, there was no serious friction in the performance of the contract. About that time a difficulty arose between Bartrug, the engineer who was connected with the road making and employed by defendant to oversee this work, and plaintiff Williams, possibly a serious altercation arose between them, degenerating into a fight, and then plaintiffs announced that they would not continue in the work under Bartrug, and wanted a final settlement and release from the contract. Then it was that Bradley and Doyle, both competent engineers, were called in to make the final measurements, both parties agreeing to abide by their measurements. Possibly the court refused the instruction on the recoupment evidence for this reason. The evidence tended to show that plaintiffs desired to cease the work, with consent of defendant.
Plaintiffs’ evidence relative to their damages was excluded because this claim had not been presented to the county court, or filed with the clerk prior to the institution of the suit as provided in chap. 39, secs. 40 and 41, Code, 1918. Under this statute every person having a claim' or demand against a county ‘ ‘ shall file with the clerk of the county court thereof an account or statement of the same, fully setting forth the items”; and “no suits shall be brought against a county
Two instructions for plaintiffs were refused and error is predicated thereon. The first instruction is to the effect that if defendant “broke its contract in the first instance,” that then plaintiff had the right to treat the contract as broken and be discharged from further performing it, and if they find he did so treat it he had the right to sue for all work done under the contract which then became due by law” and the jury should find for the plaintiff in such sum as they may find defendant owes him, if any, for labor and material, less what had been paid on account thereof. This instruction is misleading. It tells the jury that plaintiff could take advantage of any non-performance of the contract, consider and treat it as broken, be discharged therefrom if he so desired to quit, and then sue for all the work and material which then became due. It told the jury that plaintiff could hold in abeyance his right to quit performance until such time as he desired if defendant “broke the contract in the first instance.” The instruction was misleading in view of the evidence. The breaches of the contract asserted consisted in failure of defendant to promptly furnish guide line stakes, make monthly estimates and make prompt payments, thereby causing delay and consequent damage to plaintiffs. The evidence was that these alleged breaches occurred largely
The second instruction for plaintiffs, refused, was to tell the jury it might find a reasonable value for such labor and materials not mentioned in the contract sued on if such labor and materials were furnished at the request of defendant or its authorized agent, the engineer, and accepted by defendant, “in addition to their finding, if any, under the instructions next preceding.” There were no “instructions next preceding.” There were only two offered and the other had been refused. There are other reasons justifying the refusal, among which is the assumption of the fact that the engineer was the authorized agent to bind defendant for services and material requested by the engineer and not contemplated by the contract. There was no such agency shown. Moreover, the contract alone is declared upon in the amended declaration. The common counts were incorporated in the original declaration, but plaintiffs, upon their motion, amended, and, in their amended declaration, left out the common counts and made no reference to the original declaration. Where an amended declaration makes no reference to the original the latter is considered as abandoned. Bartley v. Western Maryland Railway Co., 81 W. Va. 795; Shafer v. Security Trust Co., 82 W. Va. 618.
Another alleged error is that defendant subpoenaed Bar-trug, the engineer, and failed to use him as a witness, to the prejudice of plaintiffs’ case. The estimates, monthly and otherwise, of the work and material made by Bartrug did not correspond with the final estimates made by Bradley and Groves. Plaintiffs relied largely upon these estimates made .by Bartrug prior to about September 5, 1917, when
The remaining assignment of error is that of refusal to set aside the verdict and grant a new trial because the verdict was contrary to the evidence. This impels a review of the evidence. It is evident that the main controversy is whether under the contract plaintiffs were to furnish dynamite, powder and caps or whether these items were to be furnished free of charge to plaintiff by defendant. An account for $1,632.18 for such items, including rental on a road grader amounting to $50.00; rental of air compressor amounting to $28.00; drag scrapers $85.50; an amount paid for barrow pit to Thornton $58.90, was charged to plaintiffs and asserted as proper charges and proved on the trial. This evidence went to the jury without objection or exception on the part of plaintiff. No motion to exclude or strike out this evidence was addressed to the court. The court was not called upon to construe the contract in that regard. By the contract plaintiffs agreed to furnish at their own proper costs and expenses “all the necessary materials, labor, tools, and appliances” to build the grade. For the work so performed defendant agreed to make up an estimate of the work done and material which had been put in place under the contract, and pay for same at stated periods, reserving 15 per' centum of the monthly estimates until the work was completed. The last clause of the contract provided that defendant “agrees to furnish all material f. o. b. West Hamlin, and said parties of second part agree to take it off the cars. ” It is over these provisions of the contract that the contention of error in the introduction of this evidence arises, and this court is now asked to construe these provisions. It is now insisted by plaintiffs that if the claim for dynamite
Perceiving no reversible error, the judgment is affirmed.
Affirmed.