Sanaker v. Cushwa , 3 W. Va. 29 ( 1868 )

Maxwell, J.

The only question arising in the record in this case, is, did the court err in overruling the motion of the plaintiff in error for a new trial, on the ground that the verdict was against law and evidence? The bill of exceptions states the evidence of tbe witnesses examined on the trial instead of the facts appearing to the court to have been proven by each. This court cannot, therefore, according to the well settled practice, reverse the judgment, unless, by rejecting all the parol evidence for the exceptor and giving full force and credit to that of the adverse party, the decision of the court below still appears to be wrong. Exclude from the case the evidence of both the witnesses examined for the plaintiff in error in the court below, and will the remaining evidence warrant the verdict rendered?

It appears from the yvill of John B. Sanaker that the negro man in question was devised to the plaintiff in error, and it appears from the record of the case that the defendant was the personal representative of the said John B. Sanaker.

The plaintiff in the court below, now the defendant in error, to make out his case, introduced before the jury George Dougherty, a witness who stated that he purchased of Adam Sanaker, whom he considered the agent of the defendant, and he thinks ho so represented himself to be, a negro boy at the price of 1,000 or 1,100 dollars, and took a bill of sale for the same. This slave belonged to the estate of John B. Sanaker, and would belong to the defendant if the debts were all paid, and when the administrator agreed to let the slave pass into the hands of the defendant; witness does not know whether that was the case or not; when he bought he did not buy the slave’as the property of Adam Sanaker, but bought him from Adam Sanaker merely as her agent. Witness cannot saj? that Margaret J. Sanaker signed the bill of sale; would not be certain, but thinks he had a conversation with her as he was passing, and thinks she told him whatever her father did would be right; witness cannot produce the bill of sale, he either transferred it to the person to whom he sold him or has lost it. He then introduced the evidence of Bennett B. Hollis, who said he knew the negro girl which belonged to the estate of John B. Sanaicer; she was of iictle or no value after the death of Sanaker, but became of more value aftenvards; cannot give an opinion of her value in 1860 or 1861. Ho then introduced Hr. Francis M. Burkhart, who testified that he knew the girl well. She seemed to have some disease of the spine, and was deformed in appearance. She was of very little value at the death of J. B. Sanaker. She after-wards became a useful woman. She lived for a year or more at Mr. Tabler’s, whether hired out or not he could not say. "Witness was never called upon to examine her professionally. She might be worth from 150 to 300 or 500 dollars, or she might not be worth anything. He could not express a satisfactory opinion of her value in 1860, 1861 and 1862.

'. This is all the evidence introduced by the plaintiff below tending to show that the negro man was sold by or converted to the use of the plaintiff in error.

It seems to me that this evidence is clearly insufficient to prove that Adam Sanaker sold the negro to Dougherty as the agent of the plaintiff in error, or that she ratified the sale afterwards, or received the proceeds of the sale. There is no claim that she sold him herself.

It seems to me that the court ought to have set aside the verdict of the jury, because the evidence offered by the plaintiff' was not sufficient to warrant it, and should have granted the plaintiff in error a new trial.

I think this court, therefore, will have to reverse the judgment complained of, with costs to the plaintiff in error, and that the verdict of the jury must be ■ set aside and the cause remanded for a new trial to be had.

President Brown concurred.

Judgment reversed.