Rogers v. Engineering Co. , 101 W. Va. 1 ( 1926 )

The Huntington Engineering Company, hereafter called the defendant, had a contract to pave certain streets in St. Albans. It is contended by the plaintiff that he entered into an oral contract with the defendant to haul stone from a certain quarry, by motor truck, for use in the paving of Park Avenue, one of the streets in said city, at sixty cents per square yard in place, as measured by the city engineer. The plaintiff claims there is due him for the hauling of stone for this particular avenue, according to the said price and measurement, after deducting $200 paid on the account, the sum of $763.75. This action was instituted for the collection of this balance. On the trial the defendant contended that its contract with the plaintiff embraced the hauling of stone for the entire paving project, which not only included Park Avenue, but Fifth Avenue and other streets as well, the latter being the principal part of the paving; that there was only one contract with the plaintiff embodying the entire transaction, agreed to orally, and which was to be reduced to writing at a convenient date; that the plaintiff had performed the work sued for before he and another with this defendant signed and sealed the written agreement. The only change from the terms of the oral agreement, according to the defendant, that was carried into the writing, was that the defendant, in order to expedite the work, agreed to pay sixty cents instead of fifty cents (as orally agreed) a cubic yard for the hauling. The plaintiff admitted the execution of the written contract, and that the terms thereof were as stated by the defendant, but contended that the hauling of stone for the paving of Park Avenue was not embraced in it. If the defendant's contention that the entire transaction merged in the written contract be true, plaintiff has been over-paid for the work sued for, according to its terms.

Upon the trial the plaintiff objected to the introduction of any testimony concerning the written agreement (which was shown to be lost) and the contents thereof, which objection was overruled by the court and this evidence permitted to go to the jury. The jury found for the defendant. The plaintiff's sole assignment of error relied on in this Court goes to the admission of this evidence. The hauling was to be paid for by the square yard in the oral contract which the plaintiff attempts to set up, while under the terms of the written agreement this work was to be paid for by the cubic yard. His contention is, that if the oral contract was an independent agreement, it was improper to admit the evidence of another independent contract on the question of determining the terms of the former. If the jury believed there was an independent oral agreement, then this evidence could not properly be considered in ascertaining its terms. But on the contrary if the jury believed that there was but one contract for the hauling of the stone for the entire paving project, which was finally reduced to writing, it is plainly competent testimony. The plaintiff now seriously contends that this testimony was calculated to influence the jury unduly against his claim that the work was to be done by the square yard, even if they believed there was an independent oral contract. Whether the admitted testimony complained of was objectionable or not on this score, the objection at the time of its admission in evidence was merely general; and it being proper on the theory of the defendant that there was but one contract, the general objection was rightly overruled. Huff v. InsuranceCo., 94 W. Va. 663; Billups v. Woolridge, 80 W. Va. 13; State v. Calhoun, 67 W. Va. 666; Lynchburg CottonMills v. Rives, 112 Va. 137. If the plaintiff would have restricted this evidence the duty rested upon him to move the court to so restrict it, either at the time it was offered, or later by requesting the court to do so by proper instruction to the jury. The plaintiff did not avail himself of either method. The judgment of the circuit court is affirmed.

Affirmed.