dissenting:
I agree with the majority holding that a plaintiff may recover upon the common counts on a special contract where the contract has been “fully performed on plaintiff’s part, thus giving rise to an antecedent debt”, but I do not agree with the holding that the plaintiff in the instant case could not recover as to part of Item 1 of the bill of particulars without a special count in the declaration. Item 1 of the bill of particulars, filed June 3, 1949, trial having commenced October 17, 1949, reads:
“1. Amount owed for 4,350.8 tons of 2,000 pounds each of coal delivered by plaintiff and L. E. Calhoun, doing business as Calhoun-Sammons Coal Company, to defendant from coal stripping operations on property owned or controlled by defendant in Logan County, West Virginia, from September 9, 1947, to January 26, 1948, at an agreed price of $3.20 per ton, said Calhoun having assigned to plaintiff all his interest in such account_ $13,922.56.”
*679■ In effect the majority holding is that there can be no recovery by an assignee except where the claim is pleaded specially, notwithstanding that, even at common law, plaintiff could have recovered under the common counts had there been no necessity for - proof that he was an assignee. Was any amendment of the declaration necessary to permit proof of the assignment? I think not. Code, 55-8-9, provides: “The assignee * * * may maintain * * * any action in his own name, * * *. In every such action the plaintiff may unite claims payable to him individually with those payable to him as such assignee, * * It will be noted that the statute says the assignee may “maintain” any action, not merely “bring” the action. I think the clear intent of the statute is to permit an assignee to proceed on such a claim, both as to pleading and proof, without regard to the fact that the claim was assigned. In so far as the question of pleading is concerned, of what advantage to an assignee to be able to sue in his own name, and unite claims payable to him individually with those payable to him as assignee, if he be required to plead the assignment specially before offering proof thereof? Of course, if a defendant is not informed as to the nature of the plaintiff’s claim, he may be entitled to a bill of particulars, as in other cases.
Assuming, however, that the amendment was necessary to correct the variance between the pleadings and the proof, I think it entirely sufficient. Code, 56-4-27, simply says that “If at the trial of any action or motion, there appears to be a variance between the evidence and allegations or recitals, the court, if in its opinion substantial justice will be promoted thereby, may allow the pleadings to be amended to conform to the proof.” Note that such an amendment is not limited to “any action” other than one based on the common counts. Note also that the amendment may be made as to “recitals” as well as to “allegations”. Since the majority concedes that recovery of Item 1 could have been had under the common counts if there had been no proof required of the assignment, any necessity for the pleadings to show the *680assignment could be only for the purpose of making the pleadings conform to the proof. That would amount to a mere recital of a fact, not the stating of a new or different cause of action. Since all facts contained in the amendment were made known to the defendant long before the trial, I assume there can be no question that the allowance of the amendment, if otherwise permitted, would have promoted “substantial justice”. I believe that Code, 56-4-24, not only allows but requires “great liberality in permitting amendments to pleadings”, as pointed out by the majority. Why not apply the rule here instead of exploring the law of common law pleading for some superficial technical theory upon which to deny the amendment?
Being unable to reach the same conclusion as the majority with reference to the preponderance of the evidence relating to damages, I believe it necessary to point out certain facts contained in the record, in an effort to make my position clear. There is no dispute as to the price per ton to be paid plaintiff for coal delivered by it to the scales of defendant, or that the scales were operated solely by employees of defendant, or as to the number of mine cars of coal actually delivered defendant by plaintiff, or that all mine cars used in the several operations were of the same capacity. As stated by the majority, the “verdict of the jury depends (1) upon the correctness of the figures furnished by Willie Gibbs; and (2) whether the shortage of at least 40 per cent was constant over the entire period of the stripping operation.” Inasmuch as the majority accepts “Gibbs’ testimony as true”, finds “nothing in this record to gainsay Gibbs’ veracity as a witness'”, and concedes that the jury was justified in accepting Gibbs’ test'mony as to the 2,790 pounds error in the weight of each mine car of 5,700 pounds of coal constituting the 49 per cent error, those questions need not be considered here. It will be noticed, of course, that the verdict was based upon an error of 40 per cent of the amount of coal for which plaintiff was paid, not 49 per cent.
*681I do not agree that the average weight of the mine cars of coal delivered was “arbitrarily established” at 5,700 pounds. I believe that fact proven. E. R. Sammons was asked the following questions and answered: “Q. Well, now, I believe you stated a minute ago that you did check the weigh sheets that were furnished by the Elk Creek Coal Company over this entire period compared with the amount you were being paid for the coal. What was the average load per mine car on those? A. The average was about 5,700 pounds. Q. Any cars loaded more than 5,700 pounds? A. I am not sure, I would get the total and divide by the number of cars we had, that is, they showed an average of 5,700 pounds. We loaded our cars heavier all the time, as much as we could get on them. If we had a car it was to our advantage to get as much coal as possible on that car and get it weighed. Q. Was there any change in this average from the beginning of the operation to the end of the operation? A. No, sir, there was not.” Lucian E. Sam-mons testified: “They would weigh something between five and six thousand pounds. I would say they averaged close to 5700 pounds.” F. C. Sammons was asked the following questions and answered: “Did you see any weights on the weight sheets? A. Yes, they gave me the sheets. Q. What did these weights average? A. Each day if you-would take a day’s work, that didn’t add up — a hundred cars which was about a maximum — add them and they would not vary from 5,700 very much. Q. A little over sometimes? A. Sometimes 25 less, sometimes over. Q. Now, did you notice any difference in weights at the beginning of the check, or at the end of the check? A. Not any change. Q. About the same throughout the period, is that right? A. That’s right.” This average weight is, in effect, admitted by H. R. Honaker, defendant’s witness and general superintendent, who stated: “The deep mine job would average '2A, and the strip coal from the Sammons Brothers strip would go possible 3 tons, 2.9.” Frank Rice, defendant’s witness and weighman, who operated the scales for defendant during the larger part of plaintiff’s operation, was asked and answered; “Q. Did *682they weigh the same throughout the whole period that you were, weighing them? A. Yes-, sir.”
As to the error of 1,290 pounds per mine car of coal' due to the weight on the tare being set at 4,990 pounds instead of 3,660 pounds, Gibbs testified: “I inquired of the weighman as to when the tare weight of the cars was set, the way I recall it, and he pointed on the wall to the figure of 46, meaning 1946. He said, ‘That is when the tare weight was set.’ I inquired as to who set the tare weight, and he said the mine superintendent.” I assume that the majority also accepts this testimony of Gibbs as true. However, he is -corroborated by other witnesses. Arlie Runyon, defendant’s witness and weigh-man, stated, with reference to the figure “46” written on the wall: “That was the year the weight was put there.” This witness of defendant was asked the following questions and answered: “Mr. Runyon, on those weights on the scales, were they the same throughout the whole period that Sammons Brothers Construction Company was loading coal and dumping it there at the headhouse, did the scale run about the same throughout the whole period? A. You mean the weight? Q. Yes, sir, about the same throughout the whole period? A. Yes, ■sir, it did. Q. No change -before or afterwards, is that what you say? A. No, sir, there wasn’t. Q. Just hasn’t been any change? A. The weight you mean? Q. Just about the same all the way through? A. Yes, sir.” Thus we have the positive statement from defendant’s own weighman that the tare weights remained the same throughout the entire period of plaintiff’s operation. Mr. Rice, another weighman of defendant, who had been employed by the company since 1938, and who was present at least part of the time while Gibbs was testing the scales, was asked, and answered: “Now, I believe you stated that Mr. Stafford changed the tarebeam from time to time, is that right? A. No, not from time to time; he changed it once or twice while I was there.” This is in direct conflict with other evidence of defendant to-the effect that the tare weight was changed each month *683to correct differences in the weights shown by the scales and the weights shown by the records of the shipping railroad company, and clearly supports plaintiff’s position that the tare of 4,950 pounds was deducted from the weight of each mine car throughout the entire period of plaintiff’s operation. A representative of the manufacturer of mine cars used by defendant testified that the cars weighed on the average a little more than 3,900 pounds, but further testified that such cars would weigh considerably less after being used for some length of time, due to rust and wear. The larger number of the cars used by defendant had been used for approximately ten years.
Of the 2,790 pounds error found by Gibbs, an error of 700 pounds was the result of the weighing of each car in train instead of uncoupling and weighing each car separately. That this practice existed throughout the operation of plaintiff seems perfectly apparent. Defendant’s position at the trial was that the practice was the usual and accepted practice of weighing mine cars of coal, and that no error could have resulted from such practice. This, I think, amounts to a clear admission, or at least there is a clear inference, of such continued practice on the part of defendant. Of the error found by Gibbs, 300 pounds per mine car was the result of the binding effect of the rails attached to the scales with rails leading onto the scales. This condition, according to Gibbs, was corrected when the ends of the rails were shortened. The jury had the right to conclude, from these physical facts, that the rails would not have been lengthened from such continuous friction and that, therefore, such friction had existed throughout plaintiff’s operation, and the defendant, although having had complete possession and control of the scales, did not attempt to show otherwise. These conclusions, however, do not depend upon inferences, as will be shown later. The three errors mentioned, 1,290 pounds false tare, 700 pounds as to the weighing of each car in train, and 300 pounds as the result of the binding rails, constitute more than a 40 per cent error in the *684weight of a car of coal of 5,700 pounds, and, in the aggregate, more than the amount of damages allowed plaintiff by the jury. There was a further cumulative error, however, testified to by Gibbs, of 500 pounds in each 6,000 pounds of coal weighed, due to mechanical defects in the scales. This 500 pounds error is, I think, clearly established not only by plaintiff’s witnesses but by defendant’s own witnesses. Stafford, defendant’s mine superintendent, testified that he placed a fifty pound weight “on the scales easy and it only weighed about forty pounds”. This would show a greater error than testified to by Gibbs. Ray Watts', Logan County Sealer of Weights and Measures from 1936 to 1944, testifying for defendant, stated: “* * * I inspected those scales at regular intervals, I would say they were 90% perfect all the time, I was Sealer of Weights and Measures.” The 10 per cent error was greater than the cumulative error testified to by Gibbs. Other evidence, I think, strongly supports the jury finding that a shortage of at least 40 per cent “was constant over the entire period” of plaintiff’s operation.
Almost from the beginning of the operation,' plaintiff complained that it' was not receiving payment for the amount of coal delivered. It was at first believed that the shortage was due to a mistaken practice or method of identifying or separating mine cars hauling plaintiff’s coal from mine cars hauling coal from defendant’s deep mining operations'. E. R. Sammons testified that they started complaining about shortages “right after Sam-mons Brothers Construction Company alone started.” L. R. Sammons was asked as to this and stated that he went to the office of defendnat “every two or three weeks” and talked with Mr. Davis concerning the matter. Other witnesses testified to the same effect. At least two witnesses testified that officers of defendant company stated, in effect, that no tare was being deducted, meaning, of course, no tare over and above the actual weight of the empty mine cars. After plaintiff had contracted the trucking of the coal to the scales, the truckers being paid on a tonnage basis, a number of tests were máde to es*685tablish the capacity of the trucks used in the hauling, and, when considered with the number of truck loads of coal hauled, a complete record thereof having been kept, clearly indicated that plaintiff was delivering more coal to the scales than it was being paid for. Some of these tests showed more than a 40 per cent.shortage in the coal credited to plaintiff.
Witnesses of plaintiff testified to the effect that the trucks used by plaintiff before the hauling was contracted were of approximately the same size as the trucks used by Dick and Courts. Witnesses also testified to the effect that the trucks could not have been loaded any fuller, and that the trucks were “loaded to capacity”. A number of witnesses testified to the effect that plaintiff delivered only “clean” coal, and it is certain that defendant’s inspectors were at the mining operation of plaintiff for the purpose of seeing that only clean coal was delivered. There is no denial that defendant furnished plaintiff with statements showing the number of tons of coal for which plaintiff was paid. As pointed out above, there is abundant evidence to establish that the average weight of the coal of each mine car was 5,700 pounds. These facts, in my opinion, clearly warranted the jury in finding, as it necessarily did, that the practice and conditions under which the coal was weighed at the time Gibbs tested the scales existed throughout the period of plaintiff’s operation and that, therefore, the error in the weighing of the coal delivered by plaintiff amounted to at least 40 per cent of the coal for which plaintiff was paid. In Hurxthal v. St. Lawrence Boom & Mfg. Co., 65 W. Va. 346, 64 S. E. 355, the Court laid down the rule that: “A verdict depending wholly on conflicting oral testimony of witnesses in the presence of the jury will not be set aside cn the sole ground that it is against the weight and preponderance of such evidence. The jury’s province to judge the credibility of such witnesses cannot be so invaded.” Point 1, syllabus.
I think the majority considers some of defendant’s evidence as controlling when it is strongly contradicted. De*686fendant’s principal contention is that even though the scales were in error an adjustment was made each month so as to “coordinate” the weights shown by the scales with the weights shown by the shipping railroad company. The effect of that would be to disregard the weights shown by the scales, which is not what the parties contracted should be done. Such an adjustment, however, was impossible, because of the fact that the coal from the S. P. B. strip mining operation, an operation four times larger than that of plaintiff, was not weighed, but merely estimated; and for the further reason that the slate and other impurities were removed from the coal produced from the several operations after the coal mined by plaintiff had been weighed and intermingled with the coal from the other operations, such impurities not having been weighed, or the weight thereof even estimated. Defendant also contends that the tare of 4,950 pounds was justified by the large amount of slate and other impurities in the coal delivered by plaintiff, yet Stafford, defendant’s mine superintendent, testified: “Q. Who handled this matter of adjusting the scale weights to the railroad weights and who. gave you the figures then to use in changing the tare weights on the scale beams? A. Mr. Honaker, he always gave me the figures to change. He would say to add twenty pounds, twenty-five pounds; I don’t think I ever knew it to go over 160 pounds. Q. Well, was it always large, what do you mean by that, would the scale weights always go under the railroad weights, or sometimes under and sometimes over? A. Sometimes be the other way; sometimes you would take off.” . Defendant further contends that heavy accumulations of coal remained inside the mine cars after they were emptied, making the additional tare necessary. But it was clearly shown that each mine car was emptied by being automatically overturned; that automatic hammers were operated to prevent any such accumulations; and that employees of defendant removed any coal remaining after the cars were overturned. It seems perfectly apparent that if any reasonable part of the 1,290 pounds of tare added to the actual weight of *687each empty mine car resulted from either of the circumstances contended for by defendant, the weights shown by the scales could not possibly have so nearly equaled the weights shown by the records of the railroad company, as contended by defendant. In view of this evidence it could hardly have been expected that the jury would find that the defendant’s operations were so inefficient as to have permitted such accumulations to be transported back and forth in its mine cars. That would have reduced the amount of coal that could have been marketed, for all agree that defendant then had an insufficient number of mine cars to properly serve the several operations.
Defendant contends that the 1,303 truck loads of coal delivered by Dick and Courts, or .11,401 tons, averaging the truck loads at 8-% tons, as against 8,612 tons, the amount of coal actually paid for, shows an error of 2,789 tons, and only a 24 per cent shortage. But 2,789 tons are 24 per cent of 11,401 tons, the amount of coal claimed to have been delivered, not the amount paid for by defendant. Some of the evidence indicated that the trucks hauling coal would average, on the short hauls to the scales of defendant, more than nine tons. Therefore, if the jury used that weight, as it was entitled to do, the' shortage as to the coal paid for would be approximately 40 per cent.
In cases of this type it is not necessary that damages be established in an exact amount. “Our decisions say that in such cases absolute certainty as to the amount of damages is not required but that reasonable certainty only is necessary, and that substantial damages may be recovered, though the loss can be stated only approximately. Hurxthal v. Boom Co., 65 W. Va. 346; Manss-Owens Co. v. H. S. Owens & Son, 129 Va. 183.” Reiser v. Lawrence, 96 W. Va. 82, 89, 123 S. E. 451.
Being of the opinion that the action of the trial court in, allowing the amendment to the declaration was not error, and that this Court has invaded the province of the jury, I respectfully dissent.