Volume 96 — West Virginia Reports

<p>Error to Circuit Court, Marion County.</p> <p>Action by Maggie J. Blackwood against the Monongahela Yalley Traction Company. Judgment .for plaintiff, and defendant brings error..</p>

<p>Error to Circuit Court, Marion County.</p> <p>Action by Charles G. White against the Monongahela Valley Traction Company. Judgment for plaintiff, and defendant brings error. „ , , 7 ,r</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by the Miami Co-operative Mining Company against the Cherokee Coal Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Bbokees. — Broker Entitled to Commission, Where Purchaser and Better Agree to Modified Terms.</p> <p>Where a broker, by virtue of a contract for commissions with bis principal, for sale of the principal’s land, upon stated price and terms, produced a purchaser who is ready, able and willing to purchase on the terms proposed, or upon terms different therefrom to which the principal agrees, and the seller and purchaser verbally agree upon those changed terms of sale and purchase, the broker is entitled to his commissions whether the verbal agreement be carried into fruition or not; unless the failure to carry out the trade was caused by the purchaser, and not imputable to the seller, (p. 25).</p> <p>2. Same. — Exelusion of Evidence of Reason for Repudiating Purchase Outside of Oral Agreement Eeld Erroneous.</p> <p>Where in such case the buyer and seller both assert that they were able, ready and willing to complete the verbal agreement by exchanging deeds with payment and acceptance of balance of purchase money, but that each was prevented from so doing by the fault or dereliction of the other; it is error to exclude from the jury evidence that the purchaser had refused to complete the sale and purchase and had declared the deal “off” because of the non-performance of a condition precedent imposed by him and not covered by the verbal agreement, which refusal, made to another person in interest, was communicated to the seller, and upon which the latter acted. (p. 28).</p> <p>3. Same.- — In Suit for Commission Instruction Should Direct Jury to Predicate Verdict on Finding Whether Failure to Consummate Hale WÍas Due to Defendant or to Purchaser.</p> <p>In an action of assumpsit on the common counts by a broker to recover h-is commissions in such case, where his principal and, the party procured by the broker have verbally agreed upon a purchase andl sale of the land upon terms different from those authorized to be proposed by the broker, and the seller and purchaser each assert that the failure to consummate the sale was due to the fault of the other, the instructions to the jury should direct them to predicate the verdict upon their finding as to which party was at fault under the evidence and circumstances, (p. 30).</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Charles Burdette against Joseph Henson. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Circuit Court, Kanawha County.</p> <p>Action by Charles Listing' ag’ainst Prank S. Rodes and others. Prom a decree for plaintiff, defendants appeal.</p>

<p>Error to Circuit Court, Kanawha County.</p> <p>Action by Watt Angel against the Black Band Consolidated Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Party Waibs — Agreement Held, Not Abrogated, by Destruction of Party Wall by Fire.</p> <p>The respective owners of two adjoining city lots enter into a party wall agreement, which agreement hinds their heirs, executors and assigns, and expressly states that it runs with •the land, hut makes no provision for reconstruction in event of total or partial destruction of thei wall; and the owners of one of said lots erects a huilding on their lot, constructing a party wall in conformity with the contract, and afterward convey their lot and huilding to a corporation, binding it to carry out the provisions of said agreement. The buildings' on both lots are afterlwards destroyed by fire, which partially destroys the party wall. Thereafter the -said corporation constructs a new building on its lot, using a substantial part, remaining intact, of the old party wall; and during the progress of the work, L. who had subsequent to the fire acquired the adjoining lot by deed binding him to carry out the provisions of the party wall agreement, assists in directing the reconstruction of the party wall and uses the same in the reconstruction of a large building on his lot. Under these circumstances said party wall agreement is not abrogated or destroyed by the partial destruction of the original party wall, and both parties are bound by the terms thereof, (p. 286).</p> <p>2. Arbitration and Award — Notice Revoking Arbitration Clause in Contract Must be of Same Dignity as Original Contract.</p> <p>Where contract under seal contains an arbitration clause by which the parties agnee to submit to arbitration certain matters in the event the parties cannot agree, and if either party desires to revoke said arbitration clause, the notice of revocation must he clearly expressed and plain in its intent and of the same dignity as the contract authorizing the submission. (p. 289).</p> <p>3. .Same — Notice of Revocation of Arbitration Clause, in Contract Underr Seal, Must Also be Under Seal.</p> <p>Where the contract requiring the submission to an arbitration is by deed under seal, the notice of the revocation of the arbitration clause in said contract, to be effective, must also be. under seal. (p. 289).</p> <p>4. Same — Instruction That Award Provided for in Contract Should be Basis of Terdict Held Not Erroneous.</p> <p>Where it appears that a certain clause in a written contract providing for the building of a party wall authorizes certain questions to be submitted to arbitrators, and the proof shows that arbitrators were appointed in accordance with the provisions of the contract, and that they met after due notice and were sworn and heard the evidence on the questions involved, and rendered their award thereon; it is not error for| the court, in an action on the contract to recover defendant’s proportionate part of . the cost of re-building the wall, to instruct the jury that this award shall be the basis of their verdict, (p. 289).</p>

<p>1. Robbery — Evidence Held Insufficient to Sustain Oonvietion.</p> <p>Where the indictment charges the accused of robbing the prosecuting witness of -a revolver, being armed with a deadly weapon, and the evidence and circumstances disclose that the accused, a special constable on his way to execute criminal process, accompanied by a companion for that purpose, upon reaching the home of the latter, found the prosecuting witness there w-ith bottles of intoxicating liquor in his pocket and partially exposed to view, and after a short colloquy took him from his horse by force assisted by his companion, having in their possession and ready for use their pistols; disarmed him of the revolver mentioned in the indictment, and took from him his liquor; and the pistol so taken is delivered, a day or so after, to a justice of the peace by a prohibition officer who happening on the scene of the alleged robbery assisted in disarming the prosecuting witness and the confiscation of his liquor; the essential element of -the intent to steal, take and carry away the revolver on the part of the accused at the time they came into possession of the revolver, is not clearly shown and the taking under such circumstances does not warrant a conviction of robbery, (p. 298).</p> <p>2. Same — Intent to Take Property Must Exist at Time of Robbery.</p> <p>To constitute the crime of robbery in this case the intent to steal, take and carry away the pistol must have existed in the minds of the accused at the time the prosecuting witness was disarmed; any subsequent appropriation or carrying away of the pistol, although illegal, does not make it robbery, (p. 298).</p> <p>3. Criminal Law — Persistent Effort to Introduce Prejudicial Evidence Held Error, Although Objections Thereto Sustained and Jury Admonished to Disregard.</p> <p>The prosecution in the trial of such case commits error when it attacks the character of the accused as a law abiding citizen, (the same not being at issue), by a .series of questions persistently propounded to him on cross examination asking if he has not been charged with, convicted of, and served sentence for various infractions of the law in no way pertinent to the issue, although objections to the questions and answers are sustained by the court and the jury cautioned not to consider them. The persistent effort to. introduce improper and prejudicial evidence, in spite of the rulings by the court of its illegality, can only be for the purpose of prejudicing the jury,, and is not wholly cured by instructions to disregard it. (p. 301).</p>

Case certified from Circuit Court, Mingo ’County. Bill by Harry Lawson and others against the County Court of Mingo County. An order sustained a demurrer to the bill, and the ease was certified for review.

Case certified from Circuit Court, Roane County. Action by Mary R. Clayton against the County Court of Reane County. The trial court overruled a general demurrer to the declaration and certified its ruling to the Supreme Court of Appeals for review.

Action by John A. Holt and others against Florence S. Holt and others, in which the named defendant filed a cross-bill. From the judgment rendered, plaintiffs appeal, and named defendant cross-appeals.

<p>1. Judgment — Default Judgment May he Set Aside for Errors Appearing on Record at Subsequent Term.</p> <p>Under section 5,- chapter 134, Barnes’ Code, 1923, the judge of a circuit court in vacation may, fori errors appearing on the record, set aside' -a default judgment entered at the preceding term of his court. Op. 354).</p> <p>2. Prohibition — Rule as to Granting Writ to Prohibit Further Proceeding and to Avoid Order Vacating Judgment Stated.</p> <p>Upon petition to this court fon a writ of prohibition directed against the circuit court’s further proceeding in the case and to avoid the vacation order, we will not presume that the circuit court exceeded its jurisdictional powers and that it went beyond the record, where defendant in his motion to set aside assigned and insisted upon grounds clearly appearing in the record. We must refuse the writ, though the circuit court erred in its judgment as to the legal merit of the errors assigned, (p. 356).</p> <p>MoGtnnis, Judge, absent.</p>

Case Certified from Circuit Court, Roane County. Bill by the United Fuel Gas Company against Godfrey L. Cabot and others. Defendant’s demurrer to bill was overruled, and ruling was certified for review.

<p>1. Ckmikai Law — tDefendant, Not Seeking Correction, Cannot Complain of Instruction Inconsistent Wfith- State’s Election, Where Evidence Tends to- Support it.</p> <p>Where, after 'the jury have been instructed that they shall find the defendant guilty as charged in the indictment if they believe from the evidence that the defendant had in his possession- or had an interest in a moonshine still, and the State is required to elect on which offense it -Will rely for ■conviction and 'does elect to rely on ¡possession, no motion is made ¡-by defendant to ¡withdraw or correct the instruction to make it comply with the offense relied on, defendant can not complain of such instruction after verdict rendered or on appeal, if there was any evidence tending to show that defendant claimed an interest in the still, (p. 723).</p> <p>2. Same — Owing Written Instruction on Court’s Motion Without Submission to- Counsel Erroneous.</p> <p>Under the rule of practice prescribed in section 22 of chapter 131, Barnes’ 'Code 1923, it is error for the trial court to give -toj the jury on its own motion an instruction in writing without first submitting the same to counsel, (p. 724).</p> <p>3. Same — General Instruction as to Method, of Arriving at Yerdict, and as to Reasonable Doubt, Approved.</p> <p>An instruction in a criminal case to the effect that before the jury can find a verdict of guilty, each and every one 'Of the jurors must be eonvlinced by the evidence beyond a reasonable doubt that the accused is guilty of the offense charged; thalt it is the duty of every juror to consider all the evidence in the case, the instructions of the court, the argument of counsel, and the argument of his fellow jurymen hut that no juror should ¡surrender -his own opinion simply because the other jurors ar© of a different opinion; and that any juror entertaining a reasonable 'doubt should no,t join in a verdict of guilty, correctly states the law on the legal requirement of unanimity of th© jury, and should be given on request, unless its subject is covered by some other instruction given in the case. (p. 724).</p>