Bradford-Kennedy Co. v. Fred G. Clark Co.

• Decision Date: 15 September 1930
• Docket Number: No. 8749.,8749.
• Citation: 43 F.2d 675
• Parties: BRADFORD-KENNEDY CO. v. FRED G. CLARK CO.
• Court: U.S. Court of Appeals — Eighth Circuit

43 F.2d 675 (1930)

BRADFORD-KENNEDY CO. v. FRED G. CLARK CO.

No. 8749.

Circuit Court of Appeals, Eighth Circuit.

September 15, 1930.

Yale C. Holland, of Omaha, Neb. (J. A. C. Kennedy, G. L. DeLacy, and Charles F. McLaughlin, all of Omaha, Neb., on the brief), for appellant.

Clinton Brome, of Omaha, Neb. (William L. Randall and T. J. McGuire, both of Omaha, Neb., on the brief), for appellee.

Before STONE and VAN VALKENBURGH, Circuit Judges, and OTIS, District Judge.

OTIS, District Judge.

This is an action brought by the plaintiff below, appellee here, to recover a balance due on lubricating oils alleged to have been sold appellant pursuant to an oral agreement. The petition alleges that the fair and reasonable value of the goods sold was $14,379.92; that appellant had paid $7,513.88 on account; that the balance due was $6,866.04, for which, with interest, judgment was asked. A verdict for appellee in the amount of $8,321.95 was directed by the trial court on its own motion.

1. It is, of course, well settled that in a proper case the trial judge may direct a verdict either for the plaintiff or defendant. It is his duty to do that "when the testimony and all the inferences which the jury reasonably may draw therefrom would be insufficient to support a different finding." Chicago M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 478, 46 S. Ct. 564, 566, 70 L. Ed. 1041; Baltimore & Ohio Ry. Co. v. Groeger, 266 U. S. 521, 524, 45 S. Ct. 169, 69 L. Ed. 419. "If the evidence, with all the inferences that justifiably could be drawn from it, does not constitute a sufficient basis for a verdict for the plaintiff or the defendant, as the case may be, so that such a verdict, if returned, would have to be set aside, the court may and should direct a verdict for the other party." Slocum v. New York Life Ins. Co., 228 U. S. 364, 369, 33 S. Ct. 523, 525, 57 L. Ed. 879; Delk v. St. Louis & San Francisco R. R. Co., 220 U. S. 580, 587, 31 S. Ct. 617, 55 L. Ed. 590; Empire State Cattle Co. v. A., T. & S. Fe Ry. Co., 210 U. S. 1, 10, 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70. The view that a scintilla or modicum of conflicting evidence, irrespective of the character and nature of that to which it is opposed, necessarily requires a submission to the jury has been expressly disapproved. A. B. Small Co. v. Lamborn & Co., 267 U. S. 248, 254, 45 S. Ct. 300, 69 L. Ed. 597.

Evidence is conclusive to the extent required in the rule stated when reasonable men considering it can reach but one conclusion from the evidence. Chicago G. W. Ry. Co. v. Price (8 C. C. A.) 97 F. 423, 427.

While under the federal decisions the rule is the same whether a verdict is directed for plaintiff or defendant, there is obviously in the former case one matter to be considered which need not be considered in the latter, and that is the credibility of the witnesses. The credibility of witnesses is certainly, at least speaking generally, a matter for the jury. That fact is without significance when a verdict is directed for the defendant. Then the court assumes the witnesses for plaintiff have testified truthfully. The court gives full weight and value to their testimony and holds that it is insufficient to establish a cause of action. In that case the court does not invade the province of the jury by passing on the credibility of witnesses, and the losing party cannot complain. It is not so, however, when a verdict is directed for plaintiff. The assumption then that the plaintiff's witnesses have testified truthfully is an exercise of a plain jury function, and it is an assumption which must be made before a verdict can be directed. The court, directing a verdict for defendant, in effect says to plaintiff: "Whether your witnesses have testified truthfully or falsely, you have not made a case," but directing a verdict for plaintiff the court in effect says: "Your witnesses have testified truthfully and have made a case."

Because of this distinction, courts in some jurisdictions have held that a verdict may not at all be directed for a plaintiff. But the distinction does not justify such a complete denial of the court's power, and it has never been either denied or questioned in the federal courts. There may be nothing in the conduct and demeanor of witnesses or in their testimony, and nothing to be drawn from all the facts and circumstances in evidence which would affect their credibility, and therefore nothing to warrant submission of that issue. The correct rule would seem to be that the court should not direct a verdict for the plaintiff, even although otherwise it ought to be directed, if reasonable men might differ as to the credibility of witnesses upon whose testimony plaintiff's case depends.

2. In this case then our inquiry must go into all the evidence. We must determine from all the evidence whether, in the sense of the applicable rule, it was conclusive in favor of the appellee's cause of action as to every essential element thereof and also whether there was nothing to submit to the jury touching the credibility of the witnesses. As a preliminary to that inquiry it is necessary to have in mind clearly what were the essential elements of the appellee's case.

The theory of the appellee's case was that appellant and appellee entered into an oral contract by which appellee agreed to pay appellant for such goods as appellant should order from appellee, and appellee agreed to ship to appellant such goods as it should order; that pursuant to this contract the appellee did ship to appellant goods of the total value of $14,379.92, which appellant duly received, and that there is a balance due in the amount of $6,866.04, with interest. The essential elements of the case are these. (1) That such a contract was entered into; (2) that the appellant did order goods under the contract; (3) that they were shipped and delivered to the appellant or at its direction to another; and (4) that there was a balance due. Such were the elements of the appellee's case which must have been so completely proved that no reasonable man could say upon all the evidence that a single one of them was not conclusively proved by credible testimony.

3. We proceed then to consider whether the first of these essential elements was conclusively proved. Was it indisputably proved that such an oral contract was entered into between appellant and appellee as appellee asserts?

The appellee, the Fred G. Clark Company, was a wholesaler of lubricating oils, whose home office was in Cleveland, Ohio. The Bradford-Kennedy Company, appellant, whose principal place of business was in Omaha, Neb., was and for years had been engaged in the business of selling lumber. It had never engaged in the business of selling lubricating oils. D. C. Bradford was president of the Bradford-Kennedy Company. In 1922, when this case had its beginning, and for sometime prior to that date, Bradford was in failing health and was able to give only slight attention to the business of his company. Since his youth he had known and for sentimental reasons had taken some interest in one C. D. Bennison, who in 1922 was about forty years of age, had not been successful and was then without resources. Bennison had had some experience as an oil salesman and was seeking financial assistance toward engaging in the oil business for himself. In that situation he thought of and consulted his friend and benefactor, Bradford. Previously he had been in touch with one W. G. Dickey, who was a salesman for the Fred G. Clark Company.

The contention of the appellee is that the oral contract relied on by it was entered into between Dickey, representing the appellee, and Bradford, president of the appellant company, representing the appellant, in the presence of Bennison. At the time of the trial Bradford was deceased. Dickey and Bennison testified.

According to the testimony of Dickey, the conversations between himself and Bradford, which resulted in the oral contract, took place on two days, August 21 and 22, 1922. The conversation on August 21 was detailed by Dickey as follows: "After I was introduced to Mr. Bradford, Mr. Bradford stated that they were in the oil business and that Mr. Bennison was a very good salesman; that it would be satisfactory for Mr. Bennison to make up an initial order for the stock and asked that he do so and that we come back the following day with the order and he would look it over and sign it. As we walked out of the door Mr....