Turner v. Schaeffer

PER CURIAM. [1] Since the cases were plenary actions to recover money only, which was alleged to have been paid as a preference in favor of the banks, respectively, as principal, and Schaeffer, as surety, we think it clear that each was an action at law; and so properly brought here on writ of error. Warmath v. O’Daniel, 159 Fed. 87, 88, 90, 86 C. C. A. 277, 16 L. R. A. (N. S.) 414 (C. C. A. 6); Wm. Edwards Co. v. La Dow, 230 Fed. 378, 381, 144 C. C. A. 520 (C. C. A. 6) ; First State Bank v. Spencer, 219 Fed. 503, 505, 135 C. C. A. 253 [656] (C. C. A. 8); Simpson v. Western Hardware & Metal Co., 227 Fed. 304, 307, et seq. (D. C.); Grant v. National Bank of Auburn, 197 Fed. 581, 591 (D. C.); Whitehead v. Shattuck, 138 U. S. 146, 151, 11 Sup. Ct. 276, 34 L. Ed. 873; Detroit Trust Co. v. Old National Bank, 155 Mich. 61, 64, 118 N. W. 729; Allen v. Gray, 201 N. Y. 504, 508, 94 N. E. 652, Ann. Cas. 1912B, 123; Maxwell v. Davis Trust Co., 69 W. Va. 276, 279, 71 S. E. 270. The appeals will therefore be dismissed. [2, 3] In the agreement to waive a jury and to try the issues to the court, it was provided that in deciding each case the court should state its findings of fact.and conclusions of law, and this was in effect carried out. The cases, however, each turned at last upon the issue whether, at the times the payments- in dispute were made to the banks Schaeffer knew or had reasonable cause to believe that Lowes was insolvent; and the ultimate fact found in substance was that Schaeffer did not have such knowledge or any reason for such belief. We are disposed to treat this as a special finding, though, whether general or special, it has the effect of the verdict of a jury. Hence the only inquiries open in this court under the assignments of error are whether the evidence tends to' support the ultimate finding and the finding in turn is sufficient to sustain the respective judgments. This results alike from the statutes and the decisions. -Sections 649, 700, and 1011, Rev. Stat. (Comp. St. 1916, §§ 1587, 1668, 1672); Norris v. Jackson, 76 U. S. 125, 127, 19 L. Ed. 608; Runkle v. Burnham, 153 U. S. 216, 225, 14 Sup. Ct. 837, 38 L. Ed. 694; United States v. U. S. Fidelity Co., 236 U. S. 512, 527, 35 Sup. Ct. 298, 59 L. Ed. 696; Chicago, R. I. & P. R. R. Co. v. Barrett, 190 Fed. 118, 123, 124, 111 C. C. A. 158 (C. C. A. 6); Mason v. Smith, 191 Fed. 502, 503, 112. C. C. A. 146 (C. C. A. 6); Nashville Interurban Ry. Co. v. Barnum, 212 Fed. 634, 638, 639, 129 C. C. A. 170 (C. C. A. 2); United States Fidelity & G. Co. v. Board of Com’rs, 145 Fed. 144, 150, 151, 76 C. C. A. 114 (C. C. A. 8); American Sales Book Co. v. Bullivant, 117 Fed. 255, 260, 54 C. C. A. 287 (C. C. A. 9); Maryland Casualty Co. v. Orchard Land & Timber Co., 240 Fed. 364, 366, 153 C. C. A. 290 (C. C. A. 9). [4] It cannot be doubted that there is evidence tending to support the ultimate finding. The finding rests upon the credibility of the witnesses, especially that of Schaeffer, all of whom testified in open court. Upon most careful consideration of Schaeffer’s testimony, particularly in connection with his demeanor and candor while testifying, the trial judge believed him. It is .virtually conceded that, if Schaeffer’s testimony at the hearing below is to be believed, the finding is,correct; in these circumstances we are bound to conclude, as we should be in respect of, a special verdict of a jury, that the trial judge’s finding is supported by the evidence. And we approve his conclusion of law that the fact so found is plainly sufficient to- support the several judgments. [5] It is, however, earnestly insisted on behalf of plaintiff that evidence has been discovered since the judgments were entered which in itself would justify; if not require, reversals. This claim and part of the evidence so discovered appear only in- plaintiff’s reply brief, [657] though they were discussed in the oral argument here. The most obvious answer to the contention is that in such circumstances we have no power to reverse, since in actions at law this court can only correct errors of the court below; and it is not pretended that the claim of newly discovered evidence has ever been called to the attention of that court. The general rule of course is, as was stated in Mexico International Land Co. v. Larkin, 195 Fed. 495, 496, 115 C. C. A. 405, 406 (C. C. A. 8): “In an action at law the lmrclen is on the plaintiff in error to establish the existence o£ those errors of which he complains, and in the absence of proof by the record that a question of law arose, and that it was presented to and ruled upon by the court below, no error is established, because none could arise concerning a question which was not presented, considered, or decided by the trial court. Southern Pacific Company v. Arnett, 126 Fed. 75, 77 [61 C. O. A. 131],” and citations. [6, 7] Assuming, however, that where matters arising after proceedings in error have been perfected may justly call for resuhmission to the trial court, reversal for that purpose would be warranted, still, apart from the question of plaintiff’s lack of diligence as urged in defendant’s behalf, in our judgment the evidence so far as shown or indicated is not material. Copies of six letters are shown, bearing dates in October and November, 1911, all addressed to creditors of Lowes, one located in Cincinnati (to whom two of the letters were sent), one in Indianapolis, one in St. Louis, and two in Dayton, and representing claims amounting to $24,226.50; upwards of $18,000 of this amount was held by the two Dayton creditors; and all the letters were signed in the name of Luyster & Lowes, while only one seems to have been so signed by Schaeffer. True, they contain explanations for delaying payment of these creditors, but they do not appear to relate to the real sources of Lowes’ financial troubles. Those troubles mainly arose through failure to ascertain and meet liabilities due to subcontractors and materialmen connected with Lowes’ government work at Ft. Sill, Okl., and with his work on a public building in Mercer county, Pa. These features were abundantly explained by the trial judge. Counsel say in their reply brief that they found many letters, at least 100, written by Schaeffer, and, further, that this correspondence “is along the line of his letters heretofore made a part of this brief.” We cannot think that letters along the same line as those copied into the brief are inconsistent with the explanations made by Schaeffer in his last testimony. It is quite conceivable that he might have written many letters, stating reasons for Lowes’ delays in meeting payments, and still have been totally ignorant of Lowes’ real financial condition at the times the payments in dispute were made to the banks. Hence we are not impressed with the insistence of counsel that reversals of the judgments would lead to different results. The difficulty with these cases is that plaintiff has been under the burden of proving his charges, and he has not done this; nor does the evidence proffered afford any siTbstantial ground for believing that he can do so. Judgments cannot be founded on suspicion. The judgments will be affirmed, with costs.