Opinion
No. 7791
Submitted April 10, 1934.
Decided April 17, 1934. Rehearing Denied June 13, 1934.
Appeal from Circuit Court, Berkeley County.
Suit by Louis Cohen against Isaac Smith and others. From a judgment in favor of the plaintiff, the defendant named appeals.
Affirmed.
J. O. Henson, for appellant.
Hugh S. Byrer and Harry H. Byrer, for appellee.
Louis Cohen, desiring to purchase some trust property to be sold at public auction, employed Reuben Fine and Mrs. Lucile Noll to bid for him at the sale. The property was knocked down by the auctioneer to Isaac Smith. Fine at once demanded the benefit of Smith's purchase (for his client, Cohen) upon the claim that Smith had bid for him. Smith denied Fine's demand and this suit was brought immediately by Cohen to enforce the demand. The circuit court found in favor of Cohen, and Smith appealed.
The sole issue presented by the pleadings and the briefs is the agency of Smith. The bid which purchased the property was $1,925.00. Fine testified that he requested Smith to make that bid for him; that Smith then made the bid; that while the auctioneer was crying it the witness asked Smith "now is that my bid", and Smith replied "Yes". Mrs. Noll confirmed Fine's testimony. Smith denied it. Some circumstances appear in the evidence which tend to discount the testimony of Fine and Mrs. Noll. Other circumstances are shown which tend to support their testimony. A like situation exists in relation to Smith's evidence. The circumstances are all argumentative rather than demonstrative. So, it would be useless to marshal them in this opinion. The trial chancellor resolved the conflicts in the evidence in favor of the plaintiff. His evidence is not inherently improbable. We cannot say that the finding of the chancellor is plainly wrong. Consequently, that finding will not be disturbed. Roberts v. Roberts, 108 W. Va. 71, 150 S.E. 231.
The decree of the circuit court is affirmed.
Affirmed.