94 W. Va. 17 | W. Va. | 1923
This case is here on writ of error to a judgment for the defendant' rendered by the circuit court of Kanawha County in an action of assumpsit to recover $864.81 for services rendered and expenses incurred while performing those services.
The declaration contains the common counts only, but a verified statement of account attached to, and made a part thereof, shows that' plaintiff sues to recdver the balance due him for services and necessary expenses accruing from July 28th to November 30, 1920, inclusive, after deducting certain credits for cash advanced to him during that period. His salary at the rate of $150 per month, and his expenses aggregated $1359.81, and the credits admitted in his statement amounted to $495, leaving a balance due of $864.81, the amount sued for.
Defendant pleaded non-assumpsit.
So confusing and inadequate is' the evidence upon the amount of his salary, expenses, the advancements made to
Plaintiff was employed by one Goettman, who represented himself to be acting for the Kern Oil & Gas Company, as a sort of superintendent to look after certain operations in the Blue Creek oil field, especially a lease known in the record as the Duval lease. Plaintiff’s account and his testimony, in addition to showing his salary, includes a list of expenses incurred by him in traveling back and fortíi from Charleston to the scene of these operations, also a list of the cash advanced him from time to time. The principal controversy of fact involves these cash credits. Defendant exhibited in evidence several cancelled checks which it claims should have been credited on account by plaintiff. Plaintiff acknowledged some of them as proper credits' but apparently refused to credit three of them, one for $96.00, one for $150.00, and another for $400.00. Of the $400.00 check, $200.00 was admitted by defendant to have been paid on another transaction. Fortunately, we need not attempt to harmonize the positions of the parties or to settle their account. Defendant’s position in the record is-that the account has already been settled.
Goettman testified that about December 10, 1920, plaintiff was circulating reports that Goettman was heavily indebted to him, so on that date, he, Goettman, and Gatter, treasurer of defendant, called plaintiff into a conference in his office for the purpose of settling all accounts. These accounts covered not only plaintiff’s relations'with defendant, but certain personal transactions with Goettman. They
Plaintiff denied the settlement. He put a strange and entirely different construction on the $175.00 note transaction, and testified he was to have the interest in the lease in addition to his salary, and that his account was subject to no credit' or offset, save the $495.00 cash credits.
In view of the conflicting statements, there is but one question for us to consider, that is, whether the defense of accord and satisfaction was properly in issue and proved. The record shows no instructions. We are left, therefore, to the pleadings and the evidence.
The pleadings are without doubt • sufficient to warrant the defense. This is an action on a simple contract, and under the rules laid down by this eourt proof of payment or of accord and satisfaction of a disputed claim is admissible under the general issue. Shore v. Powell, 71 W. Va. 61, 76 S. E. 126; Bank v. Kimberlands, 16 W. Va. 555; Burks, Pl. & Pr. (2nd. ed.) §9; Hogg, Pl. & F. §§220-221.
But one question then remains; was the defense sufficiently established by proof? Viewing the evidence of defendant in its most favorable light, and disregarding the plaintiff’s denials of a settlement we find that defendant made a parol agreement to assign to plaintiff a one-thirty-second interest in the Duval lease. No assignment was ever executed. There was nothing but the oral executory agreement, and the statement of Goettman in the record that plaintiff “could have
Plaintiff moved the court for a judgment non .obstante veredicto. There is nothing in the pleadings to warrant such a judgment, and the motion was properly overruled. Dunbar Tire and Rubber Company v. Crissey, 92 W. Va. 419, 114 S. E. 804.
We reverse judgment, set aside the verdict and remand the case for a new trial.
Reversed and remanded.