Danser v. Dorr

Williams, Judge:

Action of assumpsit for the price of goods alleged to have been sold and delivered by plaintiff to defendant. Judgment in favor of plaintiff for $577.92, and defendant obtained this writ of error.

, Suit was brought in Lewis county and process served on defendant in that county. Defendant pleaded want of jurisdiction. Issue was joined, and at the March term, 1909, a trial by jury resulted in a verdict upholding the jurisdiction. Defendant then pleaded the general issue. At the November term, *432 1909, a trial was had upon the merits, and a verdict returned in favor of plaintiff.

Counsel for defendant admit that there is birt one question in the .case, viz.: Did defendant purchase, or authorize the purchase of the goods from plaintiff, for the price of which the action is brought? This question arises both upon the plea in abatement, and upon the. trial upon the merits. Therefore, it is only necessary to consider the evidence in relation to the question upon the merits, for the character of the case is such that, if plaintiff is entitled to recover in any event, his action is 'maintainable in Lewis county; and, iE any error was committed in the trial of the issue on the plea in abatement, it would be harmless, unless there is also error in the trial upon the merits. This court will not reverse for harmless error. Nichols v. Camden Interstate Ry Co., 62 W. Va. 409, 59 S. E. 968 ; State v. Davis, 68 W. Va. 142 , 69 S. E. 639 .

The ple^i in abatement avers that defendant resided in the county of Webster and was served with process in Lewis county, and that the alleged cause of action did not arise in the latter county. Jurisdiction depends upon whether the cause of action, or any part of it, arose in Lewis county. If it did, the creditor could elect to sue in that county, or in the county of Webster, the place of defendant’s residence. Sec. 2, ch. 12-3, Code (1906). That the goods were shipped by plaintiff, consigned to defendant at Webster Springs, and were received by one H. J. Bragg who claimed to be acting for defendant, is not denied. There is also evidence tending to prove that the goods were shipped upon a written order given therefor, signed “C. P. Dorr by IT. J. Bragg.” Hence both the .jurisdiction of the court and the merits of the case depend upon the agency of Bragg. There is conflict in the testimony of witnesses on this point; and, unless there is a great preponderance of evidence against the verdict, the court would not be justified in setting it aside. The goods consisted of plumbing material, and were used in a water works plant a.t Webster Springs, which at one time appears to have been owned by defendant, and later by rae Webster Springs Water and Electric Light Company, a corporation, of.which defendant was president and general manager. The goods were shipped in the fall of 1904, and defendant testifies that the plant was then owned by the corporation, and *433 that he did not order the goods or authorize anyone else to order them. He moreover testifies that he “had no authority to authorize anyone to buy.” But he is contradicted by two witnesses, H. J. Bragg and J. C. Crieher, both of whom did work on the plant. Bragg testifies that defendant told him to order whatever material was needed for the work, and Crieher says he was present and heard defendant give that direction. He also says that he did not know that the plant was owned by a corporation, and that defendant “practically gave orders for all work.” Bragg says he knew that the plant was owned by a company but did not know any stockholders or officers other than defendant. The jury were the judges of the disputed fact concerning Bragg’s agency. There is no evidence tending to prove whether defendant told Bragg to order the goods in defendant’s, name, or in the name of his company. But, in view of defendant’s testimony that he had no authority from his company, it. is not material in whose name, or whether in any particular-name, he was directed to make the order. Because the lqgal effect is the same as if he had authorized Bragg expressly to order the goods in his (defendant’s) name. For, if he gave direction to Bragg on behalf of his company, without its authority,, it would present the case of an agent acting in excess of his authority, in which event the law holds him personally liable. In view of the conflict in the testimony, the court did not err in overruling the motion of plaintiff; to set aside the verdict.

Defendant waived his motion to exclude plaintiff’s evidence,, made when plaintiff rested his case, by thereafter introducing-his own evidence. This question has been so frequently -decided that we deem it unnecessary to elaborate on it. Core v. Railroad Co., 38 W. Va. 456 ; Poling v. Ohio River R. R. Co., 38 W. Va. 646 ; Trump v. Tidewater Coal & Coke Co., 46 W. Va. 238 ; Ewart v. New River Fuel Co., 68 W. Va. 10 .

Plaintiff’s place of business is in Weston, Lewis county; and if the goods were purchased by order, and no place of payment agreed upon, it was the duty of the purchaser to make payment at the place of purchase. The failure to pay would constitute a breach of the implied contract, and would give cause of action, where the breach of duty occurred, which was in Lewis-county. Harvey v. Parkersburg Insurance Co., 37 W. Va. 272 . “A debtor must seek his creditor to pay him, unless the ered- *434 itor be out of the State.” Galloway v. Standard Fire Ins. Co., 45 W. Va. 237 ; 3 Elliott on Evidence, sec. 2579; 30 Cyc. 1185.

The rulings of the court upon instructions are consistent with the law as herein expressed. Finding no error, we affirm the judgment.

Affirmed.