Campbell v. Willis

• Decision Date: 04 June 1923
• Docket Number: 3888.
• Citation: 290 F. 271
• Parties: CAMPBELL v. WILLIS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

290 F. 271

CAMPBELL v. WILLIS.

No. 3888.

United States Court of Appeals, District of Columbia.

June 4, 1923

Submitted February 16, 1923.

Appeal from the Supreme Court of the District of Columbia.

Charles Poe, of Washington, D.C., for appellant.

Jesse C. Adkins and Frank F. Nesbit, both of Washington, D.C., for appellee.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and BARBER Judge of the United States Court of Customs Appeals.

SMYTH Chief Justice.

Harvey A. Willis, trading under the partnership name of Harvey A Willis & Co., brought action in the Supreme Court of the District of Columbia against Thomas R. J. Campbell, trading as T. R. J. Campbell & Co., to recover an amount of money alleged to have been paid out and expended by Willis as the agent of Campbell, and at his request. There was a judgment for Willis, and Campbell appeals, assigning five errors. We shall consider them in the order in which they appear in the record.

Depositions taken de bene esse by the plaintiff were offered and received in evidence over the objection of the defendant. The ground of the objection was that no showing had been made that the witnesses whose testimony was embodied in the depositions could not be produced in court, or that any effort had been made by the plaintiff to procure their attendance. Notice that depositions would be taken at a named place and time in the city of New York was duly served upon defendant. They were taken at that time and place. The witnesses testified that they were residents of the city of New York and engaged in business there. New York City is more than 100 miles from Washington. In such a case the law presumes that the witnesses continued to live in that city and were there at the time of the trial. Patapsco Insurance Co. v Southgate, 5 Pet. 604, 8 L.Ed. 243; Texas & P. Ry. Co. v. Reagan, 118 F. 815, 55 C.C.A. 427; Whitford v. Clark County, 119 U.S. 522, 7 Sup.Ct. 306, 30 L.Ed. 500. The burden of overcoming this presumption was on the objector. See cases just cited. He made no attempt to discharge it, hence the depositions were properly received in evidence.

The defendant offered no testimony. Each party moved for a directed verdict. The court overruled defendant's motion and sustained plaintiff's. The finding of the court upon the facts involved in favor of plaintiff is equivalent to the finding of a jury (Beuttell v. Magone, 157 U.S. 154, 157, 15 Sup.Ct. 566, 39 L.Ed. 654; Empire State Cattle Co. v. Atchison Ry. Co., 210 U.S. 1, 28 Sup.Ct. 607, 52 L.Ed. 931, 15 Ann.Cas. 70), and therefore cannot be disturbed by this court, unless there is no substantial evidence to sustain it (McDermott v. Severe, 202 U.S. 600, 26 Sup.Ct. 709, 50 L.Ed. 1162; Glaria v. Washington Southern Ry. Co., 30 App.D.C. 559; Baltimore & Ohio Railroad Co. v. Miller, 37 App.D.C. 218).

For several years prior to the transaction which forms the basis of this controversy, Willis and Campbell were engaged in the brokerage business, the one in New York and the other in Washington, and did considerable business with each other. When Willis purchased stock for Campbell, it was his custom to forward the certificates, with draft attached, to Campbell's bank in Washington, the certificates to be delivered to him when he took up the draft. On June 2, 1919, following a long telephone conversation between Willis' assistant manager and Campbell, Willis purchased 2,000 shares of unlisted stock and forwarded the certificates to Campbell's bank, in accordance with the custom just mentioned. On the same day he sent Campbell a telegram, notifying him of the purchase and the price paid. This was followed by a letter addressed to Campbell at his place of business, giving the transaction more in detail. On June 6 Willis received a telegram purporting to be signed by Campbell, directing him to sell at the market price the stock which he had purchased. Immediately after receiving this telegram, one of Willis' managers was, at his request, connected by telephone wire with Campbell's place of business in Washington, talked over the wire concerning the stock with a person representing himself as Campbell, and was told by this person to sell the stock as soon as possible for the best price obtainable. On June 7 Willis mailed to Campbell a letter confirming the telephone conversation, advising him that he had sold a part of the stock and giving the price received.

The letters and telegrams addressed to Campbell were forwarded in the usual course of business. From this the law presumes they were received by him. Oregon Steamship Co. v. Otis, 100 N.Y. 446, 3 N.E. 485, 53 Am.Rep. 221; Perry v German-American Bank, 53 Neb. 89, 73 N.W. 538, 68 Am.St.Rep. 593; Corry v. Sylvia y Cia, 192 Ala. 551, 68 So. 891, Ann. Cas. 1917E, 1052; Long-Bell Lumber Co. v. Nyman, 145 Mich. 477, 108 N.W. 1019, 116 Am.St.Rep. 310. Where a person, as here, is connected by telephone wire with the place of business of one with whom he desires to speak, and is answered by one assuming to be such person it will be presumed that he is the person he assumes to be. Guest v. H. & St. J.R.R. Co., 77 Mo.App. 258. The Circuit Court of Appeals for the Seventh Circuit has ruled in Scofield v. Parlin & Orendorff Co., 61 F. 804, 10 C.C.A. 83, that where a letter is received in response to a letter sent by the receiver, the law will presume that the letter is from the person whose name is signed to it. W...