Baker Ice Mach. Co. v. Hebert, 10092.

• Decision Date: 14 February 1935
• Docket Number: No. 10092.,10092.
• Citation: 76 F.2d 73
• Parties: BAKER ICE MACH. CO., Inc., v. HEBERT.
• Court: U.S. Court of Appeals — Eighth Circuit

76 F.2d 73 (1935)

BAKER ICE MACH. CO., Inc., v. HEBERT.

No. 10092.

Circuit Court of Appeals, Eighth Circuit.

February 14, 1935.

F. H. Gaines, Charles F. McLaughlin, and Francis S. Gaines, all of Omaha, Neb., for appellant.

Norris Brown, David A. Fitch, and Ralph M. West, all of Omaha, Neb., for appellee.

Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

The appellee, as plaintiff below, brought this action to recover on certain promissory notes amounting in the aggregate to approximately $7,000. The execution of the notes and their nonpayment was admitted by defendant, but it asked a set-off by virtue of an alleged guarantee of payment of certain accounts purchased by it with other property of plaintiff's testate, and for which certain promissory notes were then given, the notes in question being renewals of those originally given. The total accounts so claimed to have been guaranteed amount in the aggregate to $4,496.86, which defendant asked to be applied as a credit upon the notes in suit, and that plaintiff have judgment for the balance only.

By reply, plaintiff pleaded that such contract of guarantee, if any, was barred by the statute of limitations of the state of Washington, where the alleged contract of guarantee was entered into, and also by the statute of limitations of the state of Nebraska, where the action was being prosecuted thereon.

At the close of all the evidence, plaintiff moved for a directed verdict. Before the court had passed upon this motion, defendant, without stating any grounds therefor, interposed a motion for a directed verdict for plaintiff for the amount of the notes sued upon, less the amount of the set-off or counterclaim pleaded, and thereupon it was stipulated "that the jury herein be discharged and that the court take this case under advisement and decide same both as to the law and the facts." The court then entered its order, discharging the jury. Thereafter, the court determined the issues in favor of plaintiff, and on June 2, 1934, on a general finding, entered judgment accordingly.

From the judgment so entered, defendant prosecutes this appeal, assigning error by the court (1) in excluding the testimony of a Mr. Vette, concerning a conversation between plaintiff's testate and one J. L. Baker with respect to the alleged guarantee of the notes and accounts receivable; (2) in holding that the set-off or counterclaim of defendant was barred by the statutes of limitations, both of the state of Washington and the state of Nebraska; (3) in holding that the execution by defendant of the notes in suit amounted to a relinquishment and a waiver of its claim of set-off or counterclaim; (4) in refusing to find specifically that Leon Hebert, Sr., plaintiff's testate, guaranteed the payment of the certain accounts set forth in defendant's answer; (5) in allowing plaintiff attorney fees for services in the contest over the counterclaim; (6) in overruling defendant's motion to eliminate from the judgment an allowance of attorney fees; (7) in not finding as a matter of fact that defendant was entitled to a set-off against plaintiff's claim in the amount of the unpaid accounts set forth in its counterclaim.

At the very threshold of this case, we are met with the contention that the record presents nothing for review by this court. At the close of all the testimony, plaintiff interposed a motion for a directed verdict. Defendant then also moved for a directed verdict in favor of plaintiff for the amount of the notes sued on, less the amount of the set-off or counterclaim, but before either of these motions was passed upon, it was stipulated in open court by the parties that the jury be discharged and that the court determine the issues, both of law and fact. It is urged by appellee that because the stipulation waiving a jury was not in writing, no review of the evidence can be had in this court. It is no longer necessary that the stipulation waiving a jury be in writing, but it may be "by an oral stipulation made in open court and entered in the record." Rev. St. § 649, as amended May 29, 1930 (28 USCA § 773). It is sufficient if the court's judgment recite that a jury has been waived by both parties. United States v. Perry (C. C. A. 8) 55 F.(2d) 819.

The judgment in this case recites that, "the parties hereto orally stipulating in open court to waive a jury and submit the case to the court." But in a jury waived case, to entitle appellant to a review of the evidence in this court, it is necessary that he shall have requested such declaration of law as entitled him to judgment, or he must have made a motion for judgment, setting forth such grounds as to bring the matter at issue sharply before the trial court. Fleischmann Const. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 288, 70 L. Ed. 624; Hussey-Hobbs Tie Co. v. Louisville & N. R. Co. (C. C. A. 8) 69 F.(2d) 92; Town Club of St. Louis v. United States (C. C. A. 8) 68 F.(2d) 620; Jones v. Gill (C. C. A. 8) 67 F. (2d) 159; Mandel Bros. v. Henry A. O'Neil, Inc. (C. C. A. 8) 69 F.(2d) 452; Hawthorne v. Bankers' Life Co. (C. C. A. 8) 63 F.(2d) 971; Anderson v. United States (C. C. A. 8) 65 F.(2d) 870.

In Fleischmann Const. Co. v. United States, supra, it is, among other things, said:

"To obtain a review by an appellate court of the conclusions of law a party must either obtain from the trial court special findings which raise the legal propositions, or present the propositions of law to the court and obtain a ruling on them. Norris v. Jackson, supra 9 Wall. 125 129 19 L. Ed. 608; Martinton v. Fairbanks, supra 112 U. S. 670 673 (5 S. Ct. 321 28 L. Ed. 862). That is, as was said in Humphreys v. Third National Bank, supra 75 F. 852 855 21 C. C. A. 542, `he should request special findings of fact by the court, framed like a special verdict of a jury, and then reserve his exceptions to those special findings, if he deems them not to be sustained by any evidence; and if he...