Conn v. Roos

• Citation: 14 F.2d 64
• Decision Date: 24 July 1926
• Docket Number: No. 4756.,4756.
• Parties: CONN et al. v. ROOS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

14 F.2d 64 (1926)

CONN et al. v. ROOS et al.^*

No. 4756.

Circuit Court of Appeals, Fifth Circuit.

July 24, 1926.

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Frank H. Booth, of San Antonio, Tex., Joseph Welden Bailey, Jr., and Joseph W. Bailey, both of Dallas, Tex., A. J. Bell, of San Antonio, Tex., and Fred Brasted, of Fort Worth, Tex. (C. L. Bell, of San Antonio, Tex., on the brief), for appellants.

J. B. Lewright and William Aubrey, both of San Antonio, Tex., H. M. Garwood and Lewis R. Bryan, both of Houston, Tex., and W. B. Spencer, of New Orleans, La., for appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge (after stating the facts as above).

The District Judge's statement in his oral opinion, that he had "not given any weight to any of the testimony," standing alone, doubtless would sustain the contention of appellants that the case was not decided on its merits. But that statement, as clearly appears from what preceded it, had reference only to the testimony of witnesses relating to admissions against interest which they claimed had been made by Burton, and perhaps also by Roos. It had no reference to any other testimony or evidence in the case. The District Judge stated that he had permitted the letters exchanged by Burton and Roos to be read so that he might be fully informed. It is true he also indicated that it was physically impossible for Roos to have received the $500 as consideration and further evidence would be unavailing to prove a contract; however, as appears from other parts of his opinion, he based his decision, not on any error in the date of the contract, but on the conclusion that appellants had failed to prove the existence of the contract on the date claimed, or on any other date, because, as he construed the evidence, they had failed to show the particulars and circumstances of the date and of the facts. It was evidently the opinion of the trial court that the certificate of deposit was not cashed until after Roos went to Mexico; and, as it appears to us, the indorsements on the certificate of deposit, the proceeds of which Burton testified he paid to Roos, demonstrates that this opinion was correct. That certificate was not due until May 3, the day after it is conceded that Roos left San Antonio.

Burton testified that he cashed it at a bank, but he did not say what bank. If it had been cashed at the State Bank & Trust Company, that issued it, it would not have gone through the clearing house. If it had been cashed at some other bank, on or prior to May 2, it is against all reason to suppose that it would not have been presented to the issuing bank, located in the same city, until May 14. The indorsements indicate that the certificate was either deposited with or cashed by the National Bank of Commerce on May 14, and was paid by the issuing bank on the same day. No other bank than the issuing bank would have perforated the certificate.

The evidence therefore seems to be conclusive that Burton did not pay Roos with the proceeds of his wife's certificate of deposit. If there were no other consideration than the $500, and that is all there was according to the alleged contract, we would agree at once with the trial court that no consideration had been proved, and that consequently no valid contract could have existed. But as, according to Burton, the proceeds of the certificate of deposit, represented only a part of the consideration, the other part being represented by his agreement to advance and the actual advance of money on the judgments against Roos and Danforth, we must look further into the evidence. The District Judge saw the witnesses and heard their testimony. It is his province to pass upon their credibility. His decision on the facts ought not to be reversed unless it can be shown clearly and conclusively to be erroneous. That decision settled against Burton and in favor of Roos the irreconcilable conflicts in their testimony as to the existence of the contract, and as to what occurred at their various interviews.

It necessarily follows that the trial court was not convinced that Bell saw the contract. Burton, to say the least, was not an accurate witness. That is shown by his testimony that he received Roos' check for $1,000 at the time the alleged contract was signed, whereas his own receipt is conclusive evidence of the fact that he did not receive it until some weeks later, when it was delivered to him by Mauermann; and by his contradictory statements relating to the time when he first was informed by Roos that a lease had been obtained from Obando. As between the two principals, and aside from any attending circumstances, we are far from being able to say that Burton's accounts of the interviews that took place, concerning the judgments against Roos and Danforth, the purpose of the correspondence, and what was said about the ownership of the lease in Burton's office after the second well came in, were more credible than the accounts of those interviews given by Roos. But it is said that other evidence in the case corroborates Burton and contradicts Roos to such a degree as conclusively to prove the existence of the contract.

Burton must rely on the contract which he asserts. As stated by the District Judge, he does not claim that there was any other. His testimony supports the theory, not of a resulting trust, but of a direct trust based upon contract. He must prove consideration so as to show a valid contractual relation. According to the documentary evidence, Obando did not acquire the lease in question from the owners of the land until nearly a year had elapsed after Roos made his trip to Mexico in 1913, and Roos did not acquire an option on that lease from Obando until nearly two years after it is claimed he and Burton entered upon their joint adventure of obtaining oil leases in Mexico. If the contract relied on had been entered into in 1913, it would not cover a lease acquired two years later, unless that lease had been obtained in pursuance of negotiations begun in 1913; for the alleged contract had reference to a particular trip, and does not bear the construction that it would be binding for an indefinite period. On the other hand, the lease, if it was acquired as a result of negotiations entered into or even begun on the trip to Mexico, would be taken subject to the alleged contract, regardless of the time that elapsed before it was finally obtained. There was no direct testimony that the Obando lease was acquired in pursuance of negotiations begun on the trip to Mexico in 1913, and Roos testified that it was not. Some comment is made on Roos' failure to call Aldape, Obando, and Merriwether to support his negative testimony. His case would have been stronger if he could have supported his testimony in this way. Appellants could equally well have taken the testimony of Aldape and Obando to sustain the burden of proof which was upon them, but doubtless they had no information that Merriwether knew anything about the case. On the other hand, Conn, the trustee in bankruptcy, and a party to this suit, failed to testify that he knew of Burton's claim before the discharge in bankruptcy was granted. There might have been good reasons, though the record fails to disclose them, why the testimony of these parties who could have thrown light on the controversy was not taken. At any rate, we take the case as we find it.

Before Roos left San Antonio for Mexico on May 2, 1913, he was in financial straits. He does not deny the testimony of the bank tellers, and therefore it is to be conceded, that he could not have withdrawn the funds he had on deposit at the West Texas Bank & Trust Company without the approval of McCaleb, the president, or of the vice president of that bank, because of judgments that had been or were then in process of being obtained against the partnership of Roos & Danforth. His bank deposits were made available by an arrangement whereby Burton satisfied the judgment creditors with the payment of $1,000 contributed by Roos.

Burton was also a partner of Danforth, and conceivably might be concerned about the liens of judgments on land in which he had a half interest. Besides, Burton never disclosed whether on an accounting he would be indebted to Danforth or Danforth would be indebted to him. Whether Burton agreed to take up and carry the judgments temporarily, and eventually to hold Roos liable for half of the amount advanced as he...