Lawton v. Carpenter

PRITCHARD, Circuit Judge (after stating the facts as above). For the purpose of convenience the plaintiff in error will hereafter [363] be referred to as the defendant, and the defendant in error as the plaintiff; that being the relative positions of the parties in the court below. There are a number of assignments of error, but it is insisted by the plaintiff that, inasmuch as both parties made motions for the direction of a verdict, they thereby submitted all questions of law and fact to the court, and, having directed a verdict in favor of the plaintiffs, the court is presumed to have found all facts necessary to a judgment for them. This question has been passed upon by the Supreme Court of the United States in the case of Beuttell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654. In that case, Mr. Justice White, who delivered the opinion of the court, in discussing this question, said: “The contention is advanced that, as each party below requested the court to Instruct tho jury to return a verdict in his favor, this was equivalent to a stipulation waiving a jury and submitting tho case to decision of the court. From this premise two conclusions are deduced: First, that there being no written stipulation, the decision below cannot be reviewed upon writ of error ; second, that, even if the request in open court, made by both parties, be treated as a written stipulation, the correctness of the decision below cannot be examined, because it is in the form of a general finding on the whole case, and findings of the court upon the evidence are reviewable only when they are special. The request, made to the court by each party to instruct the jury to render a verdict in his favor, was not equivalent to a submission of the case to the court, without the intervention of a jury, within the intendment of Rev. Shat. §§ 649, 700 [U. S. Comp. St. 1901, pp. 525. 570], As, however, both parties asked the court to instruct a verdict, both affirmed that there was no disputed question of fact which could operate to deflect or control the question of law. This was necessarily a request that the court find the facts, and the parties are, therefore, concluded by the finding made by the court, upon which the resulting instruction of law was given. The facts having been thus submitted to tbe court, we are limited in reviewing its action to tbe consideration of tho correctness of the finding on the law, and must affirm if there be any evidence in support thereof. Lehnen v. Dickson, 148 U. S. 71 [13 Sup. Ct. 481, 37 L. Ed. 373]; Runkle v. Burnham, 153 U. S. 216 [14 Sup. Ct. 837, 38 L. Ed. 694].” The same question was also passed upon by this court in the case of Charlotte National Bank of Charlotte v. Southern Railway Company, 179 Fed. 769, 103 C. C. A. 261. Judge Goff, speaking for the court in this case, said: “We are impelled to the conclusion that the learned judge of the court below was in error when he held that tho rule announced by the Supreme Court in Beuttell v. Magone. 157 TI. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654, was applicable to the conditions shown by tbe record to have existed in the case at bar at tbe time be directed the verdict complained of. It appears that not only the plaintiff, but also the defendant below, at the close of the testimony, requested peremptory instructions in their favor, and that they also at the same time asked for special instructions—to be given in the event the peremptory requests were denied—some of them relating to the conflicting evidence from which it was apparent that divergent inferences could be drawn. * * * ” In that case it appears that the plaintiff as well as the defendant, at the close of the testimony, requested the court to give peremptory instructions in their favor. However, both plaintiff and defendant at the same time requested that the court give special instructions in the event the peremptory instructions were denied. Many of these [364] instructions related to conflicting evidence, and it was obvious that more than one inference could be drawn from the same. The request for special instructions, and, in addition thereto, peremptory instructions, clearly distinguishes that case from the case of Beuttell v. Mag-one, supra. The decision in the case of the Charlotte National Bank of Charlotte v. Southern Railway Company, supra, is in harmony with the case of Empire State Cattle Company v. Atchison, Topeka & Santa Fe Railway Company, 210 U. S. 1, 28 Sup. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70, in which the court, among other things, said: “ * * * It was settled in Beuttell v: Magone, supra, that, where both parties .request peremptory instructions and do nothing more, they thereby assume the facts to be undisputed, and in effect submit to the trial judge the determination of the inferences proper to be drawn‘from the same. But nothing in that ruling sustains the view that a party may not request a peremptory instruction, and yet, upon the refusal of the court to give it insist, by appropriate requests, upon the submission of the case to the jury, where the evidence is conflicting or the inferences to be drawn from the testimony are divergent. To hold the contrary would unduly extend the doctrine of Beuttell v. Magone, by causing it to embrace a case not within the ruling of that case made. The distinction between a case like the one before us and that which was under consideration in Beuttell v. Magone has been pointed out in several recent decisions of Circuit Courts of Appeals. It was accurately noted in an opinion delivered by Circuit Judge Severens, speaking for the Circuit Court of Appeals for the Sixth Circuit, in Minahan v. Grand Trunk Railway Company, 138 Fed. 37, 41 [70 C. C. A. 463], and was also lucidly stated in the concurring opinion of Shelby, Circuit Judge, in McCormick v. National City Bank of Waco, 142 Fed. 132 [73 C. C. A. 350, 6 Ann. Cas. 544]. * * * ” These cases, however, are not analogous to the case at bar. There the parties requested the court to submit certain instructions to the jury in addition to the peremptory instructions. In this case counsel for the plaintiffs moved for judgment upon the facts, and a similar motion was made by counsel for the defendant. It was evidently the intention of counsel for both parties to have the court pass upon the facts of the case, and consequently all facts were submitted to the court, which clearly brings it within the rule announced in the case of Beuttell v. Magone, supra. If the doctrine in Beuttell v. Magone rested on that case alone, we might well restrict the doctrine to cases in which there is no conflict of evidence. But Sena v. American Co., 220 U. S. 497, 501, 31 Sup. Ct. 488, 55 L. Ed. 559, is a case in which the doctrine of Beuttell v. Magone was held applicable, and in that case there was conflicting testimony on an important point in the case —the location of plaintiff’s southern boundary. “The southern boundary of Leyba depended on contradictory testimony as to the existence of an arroyo of the Cuesta del Oregans in the neighborhood, and was thought by the trial judge not to be made out.” 220 U. S. 500, 31 Sup. Ct. 490, 55 L. Ed. 559. At the close of the evidence we find the following statements appearing in the record: “Mr. Vincent: I wish to make a motion for the direction of a verdict for the plaintiffs. My motion is based upon the general ground that, upon the whole case, the pleadings, and testimony, there is no evidence upon which a jury can find a verdict for the defendant. I even wish to take the extreme [365] position that there is no evidence, although the rule in this court is that if there is a scintilla of evidence which would warrant the jury in finding a verdict for the defendant that the case should go to the jury; but we submit that there is no evidence upon which they could find a verdict for the defendant. ‘‘Court: I will hear the other side. I may say that my present view is that this case is controlled by the case of Carpenter and Springs, almost identical with that I had the view at the time that case was tried, which I suppose; the counsel for the defendant has, that it was a question for the jury, but the Circuit Court of Appeals held that 1 was in error, and I should have directed a verdict. Now, if you can show me that this case differs from that ease, I will hear yon on that point, but there does not seem to me to be any other question in the case. In that case there was a note given closing the transaction, and in- this case a note was given in part. In that case the defendant testified that it was never his intention to receive the actual cotton, and there was no contention in that case, nor is there any here, that the defendant notified the plaintiff that it was not his intention to receive the cotton, and upon that state of facts the court held that it was the duty of the court below to direct a verdict. There does not seem to me to be any question left, hut I will hear you If you can show that this case differs from that. “Mr. Garrard: We don’t think that there is any doubt about that as a matter of fact, in the light of the evidence here, that your honor could not direct a verdict. A very significant fact in the Springs Case [154 Fed. 487, 83 C. C. A. 327] is that there was no evidence offered by the defendant that went to show that there was knowledge on the part of plaintiffs of the intention of the defendant not to pay except on differences. Now, the case in 154 Fed. [83 C. C. A.], the Springs Case, states that the court has heretofore construed this statute and defines the law applicable to this caso, and refers to [Parker & Co. v. Moore] 115 Fed. 794 [53 C. C. A. 369], and I don’t think that law controls this. “Mr. McCullough: In order that the court may have both of these contentions—there are five or six or eight or ten other notes involved—and rather than have this grind before different juries, I would much prefer personally to have a decision one way or the other and let the Circuit Court of Appeals decide whether or not under those facts there is a, case of liability, so, if I were the defendant, I would prefer to have your honor grant this motion, provided we get our grounds in the record. We move your honor to direct a verdict for the defendant upon these grounds: (1) The testimony fails to show that the plaintiffs bought the cotton in question here and to secure the losses on account of which the notes in question were executed. (2) The testimony fails to show that the plaintiffs paid the money which they are seeking to recover here as evidenced by the notes, or failed to pay any sum whatsoever on account of the contracts in question. (3) The only reasonable inference to be drawn from the evidence is that this was a wagering contract, that these were wagering contracts, and that the plaintiff had knowledge of that fact before the transactions were entered into. Upon those three grounds we move for a directed verdict in favor of the defendant.” Thus it appears that both parties submitted the cause to the determination of the court. While there was some conflict of evidence, the defendant below, not only did not offer special instructions to be given if his motion for a directed verdict was overruled, but he clearly submitted the case for decision by the court without the intervention of the jury. Under such circumstances, as there was some evidence supporting the judgment below, we must affirm. Affirmed.