first point error in West Virginia

1932In support of this proposition, reliance is had upon the principle recognized in Roach v. Wallins Creek Collieries Co., 111 W.

1931"If there is conflict of testimony on a material point, or if reasonably *106 fair minded men may differ as to the conclusions of fact to be drawn from the evidence, or if the conclusion is dependant upon the weight to be given to the testimony, in all such cases the verdict of the jury is final and conclusive and cannot be disturbed either by the trial court or by the appellate court. ’ ’ Railroad Co. v. Wheeler, 147 Va. 1 ; 132 S. E. 698 .

1931"If there is conflict of testimony on a material point, or if reasonably *106 fair minded men may differ as to the conclusions of fact to be drawn from the evidence, or if the conclusion is dependant upon the weight to be given to the testimony, in all such cases the verdict of the jury is final and conclusive and cannot be disturbed either by the trial court or by the appellate court. ’ ’ Railroad Co. v. Wheeler, 147 Va. 1 ; 132 S. E. 698 .

1927While the general rule no doubt is, as contended for by the defendant, that the principal only may maintain suit for specific performance, affirmed in principle in Jones v. Hart’s Ex’rs, 1 Hen. & M. 470 -471; Tavenner v. Barrett, 21 W.

1925On the hearing here the first point of error is that defendant’s motion to quash the notice should have been sustained; first, on the ground that the notice, which as held in Hastings v. Grump, 89 W.

1915For this counsel cite and rely on our case of Arthur v. Ingles, 34 W.

1912The proposition involved in the first point of defense was decided by us in Fickeisen, Adm'r. v. Wheeling Electrical Co., on March 29, 1910, reported in 67 W.

1908It is claimed that, as the special count only charges that the defendant “agreed” to perform its contract or to do the things required of it thereunder, it is bad as not expressly alleging a promise; and we are referred to Grover v. Railroad Co., 53 W.