Freeman v. Evans

GRAY, Circuit Judge. Regina Evans, the defendant in error, brought, in December, 1904, an action of trespass in the Circuit Court of the United States for the Eastern District of Pennsylvania, against Henry G. Freeman, Jr., the plaintiff in error, and Wynne James. In her statement of claim, she set forth in substance, among other things,, that she was the owner of a farm of 95 acres, in Bucks county, Pa.„ of the value of $5,400, above all incumbrances, and of live stock, crops and farming implements thereon, of the value of $3,000; that Freeman was the owner of four old brick houses in Philadelphia, assessed at the sum of $21,800, which was in excess of their value; that James was an attorney at law and was employed by the plaintiff for the purpose of effecting a cash private sale of her farm and property thereon; [27] that Freeman and James “did fraudulently, deceitfully, maliciously and unlawfully conspire, combine, confederate and agree together to cheat and deprive plaintiff of her .said real and personal property, by effecting a fraudulent exchange thereof for a worthless equity in said houses,” and by other deceitful and fraudulent devices particularly set forth in the declaration; and succeeded in accomplishing the purpose of their conspiracy. The defendants severally having pleaded not guilty, the case went to trial and, May 3, 1905, a sealed verdict was brought in in favor of the plaintiff, for $7,273.33 against lJeury G. Freeman, Jr., one of the defendants, and this verd’et was formally recorded against him. James’ name was not mentioned in the verdict. On May fi, 1905, motion was made by Freeman’s counsel for a new trial, and also for arrest of judgment. On May 10, 1905, counsel for James filed with the clerk of the court below a prtecipe for tlie entry of judgment in favor of James, upon the above-mentioned verdict, which judgment was entered upon the record accordingly. The motion for a new trial was granted September 6, 1905, the court, among other filings, saying-: “Taking oral and documentary evidence together, there was ample proof to sustain the plaintiff's claim, and the jury found a verdict for in favor of claimant but only against Freeman, one of the defendants. * * * The verdict against Freeman alone cannot be sustained in view of the fact that rile statement claims for an unlawful combination between Freeman and plaintiff's attorney, James, and the evidence submitted by her tended to ¡wove that allegation, and a new trial should therefore be granted, and it is so ordered.” On November 2, 1905, plaintiff filed a petition with the court below, praying that the motions for a new trial and arrest of judgment might be reinstated and a reargument thereof granted, stating among other things, that the then condition of the record was such that “the plaintiff is deprived of all remedy against the defendant, or either of them, in her action of conspiracy,” and that “unless plaintiff’s case, if retried, retains its original form of conspiracy against both defendants, and she have a new trial as to both, she is without redress.” On January 8, 1906, this petition was granted. The judgment on the verdict in favor of Wynne Janies, entered May 10, 1905, was ordered stricken from the record, and an opinion filed, awarding a new trial as to both defendants. To this order, striking from the record the judgment on the verdict in his favor, a writ of error from this court was sued out by James. In submitting the case to the jury, the court below had instructed them as follows: “Whether there is a conspiracy charged or proven, or not, if the evidence shows that by false and fraudulent representations of bo Lb or one of them, tiffs plaintiff has suffered a damage, she would be entitled to recover against the one perpetrating the wrong upon her; or it both of them had done wrong, together or separately, whether there was a conspiracy proven or not, if you find that both or one of them perpetrated and have done this wrong, if any wrong was done, the plaintiff would be entitled to recover for the amount of the damage suffered against either one or both, as you find the evidence to be, if you find in her favor, and for such an amount as the evidence would warrant.” [28] And further: “If, however, you find that there is no conspiracy, and one or the other made-false representatiops of material facts in regard- to this transaction, which resulted in damage, then you have a right to say that that one is responsible here.” In the opinion of this court on the writ of error sued out by James,, and from which the foregoing statement of facts has been taken (149' Fed. 136), we said that we were unable to concur in the reason given by the court below for granting a new trial, to wit, that the only verdict which could be rendered in this case would be either against or in favor of both defendants; and stating that, under the pleadings, we thought the court below correctly charged the jury in such manner as to permit a verdict, should the evidence so warrant, against Freeman and in favor of James, and that the jury having on the evidence found such a verdict, final judgment was properly entered thereon. The orders awarding a new trial against both defendants, and striking from the record the judgment in favor of James, were accordingly reversed, and, pursuant to the decree entered by this court, the judgment in favor of James was reinstated, leaving the order of the court below, granting a new trial to Freeman, made September 6, 1905, to stand unamended. On January 26, 1907, the court below, upon motion of plaintiff to reconsider the award of a new trial as to Freeman and reinstate the verdict against him, granted said motion and struck from the record the order awarding a new trial as to Freeman, September 6, 1905, and on January 31, 1907, judgment on the verdict against him, as reinstated, was duly entered, with interest from January 26, 1907. To the judgment thus entered, the present writ of error was sued out, and the record therein is before us. There are numerous assignments of error; some to the admission or rejection of evidence, others to the charge of the learned trial judge, and the last three to the order of the court below striking off the order for a new trial and reinstating the verdict against the plaintiff in error, and entering judgment thereon. The defendant in error contends that the time within which the present writ of error could be taken, was six months from September 6, 1905, the date of granting a new trial as to both defendants below. The present writ of error, however, is to the judgment entered on December 31, 1906, after the order for a new trial had been stricken from the record, and the time prescribed for suing out the writ commenced to run from that date. A careful reading of the record, in relation to the exceptions to the admission or rejection of testimony, does not disclose reversible error. The exceptions allowed, and the assignments of error based thereon, are too numerous to admit of detailed discussion, and no good purpose would be achieved thereby. The same may be said as to the numerous exceptions taken to the charge of the court. The stress of the argument of counsel for plaintiff in error, was directed to those assignments alleging error in the action of the court in setting aside its first order for a new trial against the plaintiff in error, and entering judgment on the verdict against him. The principal ground of plaintiff in error’s [29] contention is set forth in the forty-seventh and last assignment of error. It is as follows: “(47) Tlie learned court below committed further error in entering judgment, against, the defendant, Henry G. Freeman, in this, that on the trial of the case evidence was admitted against him of James’ statements and transactions made in Freeman’s absence, which testimony was only admitted by the court and could not be competent as against Freeman, on tlie ground that he and James had engaged in a fraudulent conspiracy to defraud the plaintiff. The verdict of Hie jury in favor of James establishes not only that there was no conspiracy, but that no implication of wrongdoing towards the plaintiff conld he drawn from this testimony as against James. Vet on the same testimony I he jury found a verdict against Freeman, testimony which in a suit against him alone was utterly inadmissible.” As has been seen, this court has already in the case of James v. Evans, above referred to, decided that, under the pleadings, the court below correctly charged the jury in such manner as to permit a verdict, should the evidence so warrant, against Freeman and in favor of James, and that final judgment was properly entered upon such a verdict. It was held that, in substance the action was one on the case in the nature of conspiracy, and being a civil remedy, the gist of the action is not the conspiracy charged, but the tort working damage to the plaintiff. The tort in its nature was capable of commission, either by both defendants jointly, or by Freeman alone, or by James alone. Such being the law, the evidence that was competent and admissible in the trial of both defendants, in an action as of conspiracy, could not become incompetent or inadmissible by reason of the permissible verdict against one of said defendants. The action of the court, in admitting or rejecting testimony, must be viewed from the standpoint of the time when it is offered, and not from that of the verdict. The language of this court in the case of Lear v. United States, 147 Fed. 349, 77 C. C. A. 527, though referring to a somewhat different situation, is applicable here. We there said: “It has been suggested, however, that the ruling of the court below should now be regarded, not as of tlie time at which it was made, but with reference to the verdict that was subsequently rendered, and which, it is supposed, has had the effect of excluding some of the evidence from present consideration.” This suggestion was not acceded to, and after further discussion, we said: “We are not at liberty to indulge in conjecture respecting the grounds of a verdict, or add to its terms by inference.” It would be absurd to say in such actions as this, that the jury may find both defendants guilty of the tort which was the subject of the conspiracy charged, or that they may find that there is no conspiracy and that one or other of the defendants made false representations of material facts to the damage of the plaintiff, and then say that when a jury has thus found one of the defendants guilty, the verdict cannot stand, because testimony properly relevant to the charge of conspiracy was admitted at the trial. The presumption is, however, that when a jury find only one of the defendants guilty, they have considered the evidence as to conspiracy insufficient, and confined themselves to that [30] which affected the individual action of the single defendant, but, as we have already said, we are not at liberty to indulge in conjecture .respecting the grounds of a verdict, and unless it shall appear that positive injustice would be worked by permitting the judgment to stand, the court should not interfere therewith. An examination of the record has not convinced us that the testimony admitted on the ground that a conspiracy had been prima facie proved to the satisfaction of the court, prejudiced the case against the plaintiff in error, in view of the testimony as to his individual conduct in regard to the tort charged. We feel constrained, therefore, to affirm the judgment against the plaintiff in error, as it stands in the court below. On Motion to Rehear. PER CURIAM. Upon consideration of the petition of Henry G. Freeman, Jr., plaintiff in error, for a rehearing, it is now, October'21, 1907, ordered, that a further argument of this case will be heard at the foot of the list for the present October term, but such argument must be confined to the question whether or not the court below erred in refusing to charge that there was no evidence upon which a verdict against Mr. Freeman alone could be sustained. Counsel will be limited to one hour upon each side.