234 F.2d 547 (8th Cir. 1956), 15487, Green v. Dingman

Docket Nº:15487.
Citation:234 F.2d 547
Party Name:Ralph GREEN and William L. Groesbeck, doing business as Ralph Green and W. L. Groesbeck, Appellants, v. Harry F. DINGMAN, Appellee.
Case Date:June 14, 1956
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 547

234 F.2d 547 (8th Cir. 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

Page 548

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.

Page 549

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, party 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.

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