Green v. Dingman

• Decision Date: 14 June 1956
• Docket Number: No. 15487.,15487.
• Citation: 234 F.2d 547
• Parties: Ralph GREEN and William L. Groesbeck, doing business as Ralph Green and W. L. Groesbeck, Appellants, v. Harry F. DINGMAN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

234 F.2d 547 (1956)

Ralph GREEN and William L. Groesbeck, doing business as Ralph Green and W. L. Groesbeck, Appellants, v. Harry F. DINGMAN, Appellee.

No. 15487.

United States Court of Appeals Eighth Circuit.

June 14, 1956.

Tyler B. Gaines, Omaha, Neb. (Gaines, Spittler & Gaines, and Joseph R. Moore, Omaha, Neb., on the brief), for appellants.

Guy C. Chambers, Lincoln, Neb. (Chambers, Holland, Groth, Dudgeon & Hastings, Lincoln, Neb., on the brief), for appellee.

Before GARDNER, Chief Judge, and JOHNSEN and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This action arises out of an employment contract, and this appeal by Green and Groesbeck, defendants below and hereinafter so designated, is from a judgment by the District Court awarding plaintiff, Dingman, 50 per cent of the profits on the original Lincoln Air Base contract, disallowing in the accounting certain expenses charged by defendants to various jobs, and allowing plaintiff damages for breach of an option contract.

This case was tried to the court without a jury. Jurisdiction has been established, based upon diversity of citizenship and a controversy adequate in amount.

Defendants are a partnership engaged in highway and airport construction work in a number of states including Nebraska. Dingman, who had previous contracting and construction experience, early in 1947 entered into negotiations with the defendants, which resulted in his employment as supervisor of certain types of defendants' contracting work in Nebraska. All parties agree that plaintiff was to receive a salary of $90 per week, which has been paid and is not in dispute. All agree that plaintiff was to participate in the profits or losses arising out of the work he supervised. Plaintiff claims that the agreement was that he was to share in profits or losses to the extent of 50 per cent upon all work he was authorized to supervise except oil jobs, as to which his participation was to be 25 per cent. Defendants contend that the agreement contemplated that plaintiff's participation in profits and losses was to be 50 per cent on concrete work and 25 per cent on all other types of work. The issue of the percentage of participation arises only in connection with the Lincoln Air Base contract in 1952. The parties agree that while there was a small amount of concrete work and a modest amount of oil work on the Lincoln Air Base project, the job could not be properly classified as either oil or concrete.

The evidence bearing upon the issue of plaintiff's participation in profits and losses is conflicting. Upon this issue the court found that plaintiff had established his contention that he was to have 50 per cent participation in profits and losses upon all work except oil jobs, stating:

"Upon this disputed issue the court accepts the version of Dingman, partly from its observation of the two principal witnesses and partly because it is more readily reconcilable with the major items of the other credible evidence."

Defendants state that the determination of the agreement of the parties at the time of plaintiff's employment presents a question of ultimate fact, and contend that the clearly erroneous rule does not apply to the determination of ultimate facts. In support of such contention defendants cite Galena Oaks Corporation v. Scofield, 5 Cir., 218 F.2d 217. As we read the last cited case, it merely holds that to the extent the court's determination of the ultimate facts is induced by an erroneous view of the law, the finding is not binding on the court, the court stating at page 219:

"* * * As succinctly stated by Professor Moore, `Findings of fact that are induced by an erroneous view of the law are not binding. Nor are findings that combine both fact and law, when there is error as to the law.\' 5 Moore\'s Federal Practice, 2d ed., Sec. 52.03(3), p. 2631. * * *"

This court has frequently laid down the standard for review in nonjury cases. A finding of fact of a trial court may not be set aside unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. Pendergrass v. New York Life Ins. Co., 8 Cir., 181 F.2d 136, 137; Meier & Pohlmann Furniture Co. v. Gibbons, 8 Cir., 233 F.2d 296.

A careful consideration of the evidence in the present case leads us to the conclusion that the finding of the trial court upon the participation issue is supported by substantial evidence and is not clearly erroneous.

Defendants in their brief urge that even if it be determined that under the original contract plaintiff was entitled to 50 per cent of the profits upon the original Air Base contract, such contract was terminable at the will of either party since the contract of employment was for an indefinite period. In this situation defendants contend that either party may modify the original employment contract without additional consideration as a condition to the continuance of the employment, and that defendants modified the employment contract by limiting plaintiff's participation in the Air Base contract to 25 per cent. This issue is not raised by the pleadings. In paragraph V of plaintiff's amended complaint he states:

"That early in September, 1952, it was mutually agreed between the parties that upon plaintiff\'s completing work at the Air Base near Lincoln, Nebraska, plaintiff\'s employment should be terminated. That said work has been completed and under the terms of the agreement between the parties, defendants are indebted to plaintiff in the sum of $15,000. * * *"

In answer to this defendants state:

"With respect to Paragraph V of the Amended Complaint, these defendants admit that it was mutually agreed that plaintiff\'s employment would be terminated as set forth in the Amended Complaint; admit that the work at the Lincoln Air Base had been completed but deny that they are indebted to plaintiff in the amount of $15,000 as his share on said contract, and allege the fact to be that they are indebted to plaintiff in the amount of $5,878.69 as his bonus or share of profits accruing for the period from September 1, 1952, to the date of his termination of employment * * *."

Earlier in the petition plaintiff alleges the original contract of employment was entered into in 1947, and defendants in their answer admit the employment contract was made in 1947. Defendants in their brief do not point out the manner in which they contend they raised the modification issue in the trial court. The nearest approach is the following statement in defendants' brief, "At trial, defendants presented evidence to show that plaintiff was advised at the time of the contract for the Lincoln Air Base that the work was on a 25% basis, and that plaintiff continued to work on that basis."

We do not believe the modification issue was raised in the trial court either by pleadings or in any other manner adequate to call such issue to the trial court's attention. We are unable to find any indication in the trial court's exhaustive opinion which would disclose that the modification issue was presented to and considered by the court. This court has frequently stated that on appeal the appellant must adhere to the theory upon which the case was tried in the court below, and that the appellant can not seek reversal upon a different theory than that upon which he tried the case below. Weiss v. Duro Chrome Corp., 8 Cir., 207 F.2d 298, 300; Kirk v. St. Joseph Stock Yards Co., 8 Cir., 206 F.2d 283, 287, 40 A.L.R.2d 980; Petersen v. Chicago, Great Western Ry. Co., 8 Cir., 138 F.2d 304, 307, 149 A.L.R. 755.

Moreover, we fail to find that the evidence supports defendants' contention that the original contract was modified. The crucial discussion on this issue occurred at a conference in Des Moines between plaintiff and defendant Groesbeck. As to this conversation the plaintiff testified in part:

"* * * Then he told me that the Lincoln Air Base job was a 25% job and that was what the agreement had always been. * * * Then I said, `How about finishing the Air Base Job?\' and he said that I should. I said I was willing to do it but I expected my 50% on the job. There was some more discussion and I quit. Then I told him that I was going to make a deal with somebody else or start my own business, and would not do any more work with Green & Groesbeck, and he said I should not do anything that would interfere with the Lincoln job. I said I would not interfere and that I wanted to get the Lincoln job done as soon as possible. * * *"

Groesbeck testified:

"* * * I told Dingman there was a misunderstanding relative to percentage figures on the job, and he told me it should be a 50% job, and I told him I did not understand how he could think of a 50% deal on the Lincoln Air Base job. * * * Then he told me he thought he would quit and I told him I thought that would be best. He agreed to finish the Lincoln Air Base job and reported to me on the progress they had made on it, which was satisfactory. * * *"

We find no substantial evidence which would warrant a finding that the parties intended any modification of their original contract, except to the extent that they agreed that all rights and obligations under the contract would terminate upon the completion of the original Lincoln Air Base job. The factual situation as to modification in this...