Hall & Co. v. Lyons & Co.

1 S.E. 582, 29 W. Va. 410, 1887 W. Va. LEXIS 13

• Court: West Virginia Supreme Court
• Decided: February 12, 1887
• Status: Published

Opinion

Gneen, Judge :

The statement of this case shows, that the main controversy in the court below was about facts, though there were some legal questions involved. To determine these legal questions we must first state what facts were in our judgment proved by the conflicting evidence. A. Lyons & Oo., defendants below, plaintiffs in error, were a firm engaged in business at Pittsburg, Pennsylvania. In order to reach a correct conclusion in this case, it is important to determine definitely, who were the members of this firm. If W. A. Lyons was a member, there can be, as we shall presently see, no question that the judgment complained of was correct and should be affirmed. It is true, that there was no direct evidence given to the jury by the plaintiffs as to who constituted this firm. On the contrary the defendants by their witness, Burke, endeavored to produce the impression on the jury, that W. A. Lyons was not a member. ILe says : — “ A. Lyons & Oo. was a Pittsburg firm engaged in the oil-business; and W. A. Lyons shipped staves and headings from this (Cabell) county to A. Lyons & Oo. at Pittsburgh. If A. Lyons & Go. were in business in West Virginia, I did not know it; and if A. Lyons was a partner of W. A. Lyons in the stave-business in Cabell county, W. Va., I did not know it. I did not know A. Lyons in the business in which I was engaged ; but I was employed and directed solely by W. A. Lyons aud was not the agent, of A. Lyons & Oo. I did not tell Baker, the plaintiff, that I was the agent of A. Lyons & Oo. A. Lyons might have been a partner of W. A. Lyons; but, if he was, I did not know anything of it. ”

It is obvious, that the statement of the witness, that lie did not know, that W. A. Lyons was a partner in the firm of A. Lyons & Oo. and his other statement, that he was not the agent of A. Lyons & Oo. were both false, and that the jury believed them to be false. W. A. Lyons lived in Oabell county, and it is obvious, he was present at the trial on the part of the defendants; for the record shows that, two days after the verdict was rendered, he personally made an affidavit in the case to obtain a new trial. In all probability he was present and heard the statements of the witness-Burke; and if it had been true, that he was not a partner in the firm, he would have been sworn to prove it and to confirm the statement qf the witness, that he. the witness, was not the authorised agent of A. Lyons & Go. It is true, he would not have been permitted to testify, that he was not a member of the firm, if his testimony had been objected to by the plaintiffs; but he would have been allowed to testify, that Burke was not the agent of A. Lyons & Go.; and his failure so to testify was under the circumstances confirmation strong of the proof that Burke was the agent of said firm. He would not have been allowed to testify, that he was not a member of the firm, because both he and A. Lyons had already in effect admitted, that he was one of the partners. Section 41 of chapter 125 of the Code provides, that, “ where defendants are sued as partners, and their names are set forth in the declaration, it shall not be necessary to prove the facts of such partnership, unless the pleadings, which puts the matter in issue, be verified, or there be an affidavit, filed therewith denying said partnership. ” And section 50 of chapter 50 of the Code provides, that the pleadings before a justice shall be the complaint and the answer of the defendant, which may be in writing or oral. If there be no written complaint, it is of course that set forth in the summons. In this case the summons was against “ A. and W. A. Lyons doing business as A. Lyons & Go. ” And as when in the Circuit Court the defendants are sued as partners, and their names are set forth in the declaration, it is not necessary for the plaintiffs to prove the fact of such partnership, or that the names of the members thereof have been correctly stated, unless the correctness of the names and the existence of the partnership are denied on oath, — so in a suit before a justice, if the complaint contained in the summons sets forth the names of the persons composing the partnership and the firm name, it is not necessary for the plaintiff to prove the existence of the partnership, or that the names of the partners are correctly stated in the summons, unless the defendant denies it on oath. By failing to file such affidavit the defendants in this case confessed, that A. Lyons and W. A. Lyons were the members of the firm of A. Lyons & Go.

Burke, the witness for the defendants, in his evidence above stated, that he did not know, that' W. A. Lyons was a member of the firm of A. Lyons & Go.; but he takes care to qualify this by saying“ in the stave-business in Oabell county, W. Va.” He does deny, that he knew, that W. A. Lyons was a partner with A. Lyons in the oil-business in Pittsburg, and that as such partner he resided in Oabell cpunty, W. Va., and furnished the firm A. Lyons & Oo. with staves and headings obtained in Oabell comity to make barrels, wherein to put the oil in the selling of which A. Lyons & Oo. (including W. A. Lyons) were engaging in Pittsburg. That this was the fact is apparent from the evidence of this witness above quoted, though he resorts to the subterfuge of regarding the obtaining of the staves and headings for the oil-barrels a distinct business, though, as he states, large numbers of staves and headings were shipped by W. A. Lyons, one of the partners, to the firm, of which he was a member, at Pittsburg. Upon the statement of this witness alone the only proper inference is, that he was the agent of A. Lyons & Oo. to aid in obtaining in Oabell county staves and headings for oil-barrels for the firm, though, as was natural, he was employed by and acted under the direction of W. A. Lyons, the member of the firm living in Oabell county. The witness by a subterfuge tried to impress the jury with the notion, that he ivas the agent of W. A Lyons individually carrying on the independent business of getting-staves and headings and selling them to A. Lyons & Oo. or t any one else ; and this is the defendants’ claim, but it is abundantly disproved by the evidence of their own witness. It is further disproved by the evidence of Baker, one of the firm of. J. A. Hall & Oo., who testified as follows“ J. R. Burke came to me and represented, that he was buying staves and headings as agent of A. Lyons & Oo. composed of A. Lyons and W. A. Lyons, and that Hanna & Knight were getting" out headings for A. Lyons & Oo. and asked the plaintiff to furnish Hanna & Knight such goods and supplies, as they might call for, and charge A. Lyons & Oo. with the same, and they would pay for them monthly.”

There is no substantial difference, so far as the merits of this case are concerned, between this and what the defendants’ witness Burke says, except that Burke says, he told plaintiff they were getting out staves and headings for W. A. Lyons, not for A. Lyons & Oo. We have shown the falsity of this statement of Burke’s. The staves and headings according to his own statement was shipped to A Lyons & Co. at Pittsburg by W. A. Lyons, a member of the firm residing in Cabell county. That all the parties perfectly well understood this to be the case is shown by the fact, admitted by Burke, that the plaintiffs’ account made with Hanna & Knight under the arrangement for the month of June was made out against A. Lyons and paid by Burke, the agent, by a draft on A. Lyons, the draft being dated July 37,1879, and Burke obtained a receipt for the account signed by J. A. Hall & Co., which is in the following words : — “ July 17th, 1879, received payment in full of the above account by draft on A. Lyons. — J. A. Hall & Go.” — Burke pretends, that through a mistake this receipt states, that the payment was made by a draft on A. Lyons instead of on W. A. Lyons. This statement the jury no doubt believed to be untrue. W. A. Lyons lived in Cabell county where this settlement took place, and it seems highly improbable, that the account was settled by a draft on him. He did not have much money, as is admitted. On the other hand it was perfectly natural to draw the draft on A. Lyons at Pittsburg, where the sales of oil by A. Lyons & Co. were made, and who had ■charge of the funds of the company and was the responsible member thereof.

The jury upon the evidence could not have found otherwise than for the plaintiff's. Even had the witness, Baker, not stated, that he charged the account on the books against A. Lyons & Co., or if this statement had been excluded from the jury, the other evidence was so clear, they must have found for the plaintiffs. The plaintiffs filed no itemized statement of their account, as the exact amount due had been settled at a meeting of one of the plaintiffs, Hanna, Knight and Burke, held for that purpose, and Burke had taken a memorandum and promised to pay it. After the cause was called for trial in the Circuit Court, the plaintiffs furnished the defendants’ counsel at their request an itemized account. In this account there were several charges for payment made to sundry persons on orders drawn by Hanna & Knight. These were doubtless orders in favor óf hands employed by Hanna & Knight. There was no controversy about them, as the entire amount of this itemized account was exactly the same as the amount agreed upon by the parties themselves at their settlement.

These being the facts of the case, we-will now consider the-questions of law arising thereon. While Baker was under examination the defendants’ counsel called for the books, in-which this account was-entered and also for the orders given by Hanna & Knight. The witness- stated, that the books- and orders were at the plaintiffs’ store some eight, or ten miles distant; and the court veiy properly refused to stop-the trial to send for them, as the defendants, if they really wanted them, should have demanded their production, before they went to trial, or have had a subpoena cluces tecum issued for them before the cause was called for trial. The court clearly did not err in its judgment in this matter. It is not even contended in this Court, that the court below committed any error in- this respect. But Baker stated, that the account sued on was in these books charged to A. Lyons-<fc Co.; and- the defendants asked the court to exclude this-testimony from the jury, which the court refused to do. In this the court erred; for, if the plaintiffs wanted to prove, that this account was on their original books charged to-A. Lyons & Go. they should have had their books-in court, the original books being the primary evidence ; and the court ought not to have let this statement go to the jury; for it was secondary evidence, improper to be given, while the ■ plaintiffs could without difficulty introduce the primary evidence. But the verdict of the jury should not have been set aside because of the error of the court; for, it is clear, the defendants could not have been injured thereby ; as-il clearly appears, that if this evidence is disregarded, there was- still enough other evidence before the jury to warrant them-in finding the verdict they did find. It has been repeatedly decided by this Court,, that-, when an erroneous instruction has been given by the court to the jury, the presumption is-that the exceptor was prejudiced thereby, and the judgment will be reversed for this reason, unless it clearly appears from the record of the case, that the exceptor could not have-been prejudiced by the giving of such erroneous instruction ; in which case the judgment will not be reversed for such cause. (Mason v. Bridge Co., 224, pt. 10 of syll., and also page 239; State v. Douglass, 28 W. Va. 298, pt. 6 of syll.; Clay v. Robinson, 7 W. Va. 368; Beatty v. Railroad Co., 6 W. Va. 388; Danville v. Waddell, 27 Gratt. 448; Binns v. Waddell, 32 Gratt. 588.)

The principles, which underlie these decisions, lead to the conclusion, that, if a court admit evidence, which it ought to exclude, against the protest of the party objecting to its admission, and a verdict is rendered against such party, it will be presumed, that he was prejudiced thereby, and therefore such verdict should be set aside on his motion; and, if that be not done, this Court will reverse the case, unless it clearly appears from the record, that the plaintiff in error was not prejudiced by the admission of the improper evidence (and ordinarily this can appear, only when all the evidence is certified), and it appears, that, excluding this improper evidence, the verdict is so plainly right, that a different verdict ought on motion to have been set aside, and a new trial awarded. It would be folly to set aside a verdict, when the court is of opinion, that the jury should and would render the same verdict on another trial, the improper evidence having been excluded from their consideration. It is not necessarily good ground for reversal, that the record shows, that the court below admitted improper evidence against the plaintiff in error. Ordinarily this would be sufficient ground for reversal; but if it affirmatively appears from the record, that the plaintiff in error could not have been injured by this action of the court, the judgment will not for this reason be reversed. (Gerity v. Haley supra, p. 98.)

In this case we have seen, that the evidence improperly admitted could not have changed the verdict, which would have been the same, if said evidence had bien excluded. But it is claimed, that the verdict should have been set aside because of evidence in favor of defendants, which was discovered after the verdict was rendered. , If it be admitted, as claimed by the counsel for the plaintiff in error, but. disputed by the counsel for defendant in error, that this evidence was discovered after the rendition of the verdict, that reasonable diligence could not have secured it at the former trial, that it is material in its object and not cumulative, corroborative or collateral, it still remains to inquire, whether it is such evidence, “ as ought to produce an opposite result on the merits,” that is, a verdict for the defendant below. (State v. Betsal, 11 W. Va. pt. 5 of syll., pp. 703, 704, 731; Read's Case, 22 Gratt. 925). The facts, that the evidence claimed to be after-discovered has a tendency to discredit the evidence of Baker, if it has such tendency, is generally no grounds for granting anew trial. (Thompson's Case, 8 Gratt. 637; Read's Case, 22 Gratt. 946; Gillilan v. Ludington, 6 W. Va. 145). The counsel for the plaintiff in error does not controvert the proposition laid down in State v. Betsal, 11 W. Va. 704, that newly discovered evidence, in order to furnish the court good ground for awarding a new trial, must be such, as should produce on a new trial an opposite result, and that, unless it is such evidence, a new trial ought not to be granted. On the contrary counsel admits this to be law and cite Meyers v. Brownell, 2 Aiken 407, (16 Am. Dec. 729) and Gardner v. Mitchell, 6 Peck 114 (17 Am. Dec. 349) as confirming it. This is a settled law in this State. (Roderick v. Railroad Co., 7 W. Va., pt. 4 of syll. pp. 54, 58; Nicholas v. Jones, 8 Gratt. 267).

Now I can not see, that this newly discovered evidence ought on a new trial to produce a verdict for the defendants, or that it .is at all probable, that it would have that effect. It is a receipt in the handwriting of one of the plaintiffs signed by Hanna & Knight admitting that they had received of the plaintiffs on account of W. A. Lyons $149.53, which is the amount of this account sued on. The fact, that this receipt is in the handwriting of one of the plaintiffs, is regarded by the counsel for the defendants as proof, that these goods and supplies were not furnished on account of A. Lyons & Co. but on account of W. A. Lyons individually; and that therefore this suit against A. Lyons & Co for the furnishing of these identical goods can not be sustained. Now, when we remember, that W. A. Lyons was admitted to be one of the firm of A. Lyons <fe Co. and was the member living in Cabell county and personally known to the plaintiffs, and that they were not rendering a bill for these goods to him but- simply taking from Hanna & Knight an admission of the amount of these goods and supplies furnished to them while getting ont headings and staves for oil-barrels, which were sent to A. Lyons & Co. at Pittsburg by W. A. Lyons, it seems to me, that in such an acknowledgment of the goods received this casual statement, that they were on account of W. A. Lyons, is not very significant, especially when we find, that when the like account was formally rendered, it was made out in the name of A. Lyons, who was apparently the paymaster really looked to by the plaintiffs, and was paid by a draft on A. Lyons and not by W. A. Lyons.

The truth seems to be, that the plaintiffs were very careless about the form of the accounts and papers, which they drew. They seem to have regarded it as clearly understood, that A. Lyons & Co., who got all the staves and headings made by Hanna & Knight, were to pay for the supplies furnished to them and their hands, while they were getting out the headings and staves; and sometimes they, made out their account against A. Lyons, the real paymaster, sometim s against A. and W. A. Lyons as in the itemized account furnished to the counsel for the defendants during the trial of the case. Whereas according to the understanding, as I think satisfactorily proven, they ought to have made out these accounts against A. Lyons & Co. But when we consider their want of búsiness-habits and their carelessness in such matters, it seems to me, that a receipt taken from Hanna & Knight intended to show only the amount of goods and supplies furnished, the casual statement, that it was on account of W. A. Lyons instead of A. Lyons & Oo., is entitled to but little weight and ought not to and almost certainly would not change the verdict of the jury based, as that was, on the very strong evidence, which I have above stated.

For this reason, if there had been no other, the court did not err in overruling the motion of the defendants for a new trial on account of this after-discovered evidence.

The judgment of the Circuit Court must therefore be affirmed ; and the defendants in error must recover of the plaintiffs in error their costs in this Court expended and damages according to law.

AlTIRMJin.