Clark v. McNeill, No. 4948.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtDENISON and KNAPPEN, Circuit , and ANDERSON
Citation25 F.2d 247
PartiesCLARK et al. v. McNEILL.
Docket NumberNo. 4948.
Decision Date04 April 1928

25 F.2d 247 (1928)

CLARK et al.
v.
McNEILL.

No. 4948.

Circuit Court of Appeals, Sixth Circuit.

April 4, 1928.


25 F.2d 248

W. J. Webb, of Mayfield, Ky., for plaintiffs in error.

Bunk Gardner, of Mayfield, Ky. (J. W. McDonald, of Mayfield, Ky., on the brief), for defendant in error.

Before DENISON and KNAPPEN, Circuit Judges, and ANDERSON, District Judge.

KNAPPEN, Circuit Judge.

During May, 1924, Jesse McNeill, a farmer and lawyer, living near Hickman, Ky., gave to defendants, who were brokers having their principal office at New Orleans, La., orders to sell on the New Orleans Cotton Exchange, for October delivery, an aggregate of 800 bales of cotton, depositing with defendants from time to time margins totaling $7,500, including $4,000 deposited May 24 and 26, 1924. On May 31st defendants called on McNeill for $2,500 additional margin, which he declined to pay, for the reason hereinafter stated, and defendants "took him out of the market," by purchasing 800 bales for October delivery, charging the loss against plaintiff's margin, which left to his credit on their books — after taking into account certain charges for services and revenue taxes — a balance of $3,317.02, which was later paid to McNeill on his draft therefor.

In this suit McNeill sought recovery on two alternative theories: First, that it was understood by both parties that there was in fact to be no delivery of cotton, but that the transaction was a mere wager, by which the loser should pay to the winner the difference between the contract price of the cotton and the market price at the time the transaction should be closed. On this theory of wager contract, McNeill's recovery would be the difference between $7,500 deposited by him with defendants as margin and the $3,317.02 returned to him if he was closed out, viz. $4,182.98.

The other theory of asserted liability is that defendants had contracted with McNeill to carry him (not close him out) so long as he had a net credit margin of 50 points, and that, when taken out of the market, he had a net credit thereon of more than 81 points. On this theory, McNeill's recovery would be the difference between the contract price and the market price on the day defendants took him out of the market, in spite of his contention of a 50-point contract limitation, viz. $3,930.22.

McNeill died before the trial, and the suit was revived in the name of his widow as administratrix. On trial to a jury, plaintiff recovered verdict for the last-named sum, and judgment was entered thereon, which this writ is brought to review. The errors assigned relate to the refusal of the court to direct verdict for defendants, to the exclusion of an item of testimony offered by defendants, and the admission of certain testimony for the plaintiff.

1. At the conclusion of plaintiff's testimony, the defendants requested direction of verdict in their favor for lack of evidence to sustain the cause of action, and at the conclusion of all the testimony "defendants again renewed their motion in writing to direct a verdict in its favor."

Defendants were not entitled to such direction if there was any substantial evidence reasonably tending to support the recovery by plaintiff on either of the two theories already stated. We are disposed to think there was such testimony as to each theory. In determining this question, we must take that view of the proof most favorable to the plaintiff. Worthington v. Elmer (C. C. A. 6) 207 F. 306-309, and cases cited; Crucible Steel Forge Co. v. Moir (C. C. A. 6) 219 F. 151, 153. While one of the defendants testified that it was the intention of defendants that actual delivery of the cotton under the contracts bought and sold for future delivery was to be made, and although the printed form of confirmation of orders sent plaintiff by defendants contained

25 F.2d 249
the statement that "all orders for the purchase and sale of any commodity are received and executed with the distinct understanding that the actual delivery is contemplated, and that the party giving the orders so understands and agrees," as also that the transaction was "subject in all respects to the by-laws and rules of the exchange where executed and the United States Cotton Futures Act, § 5 (26 USCA § 735; Comp. St. § 6309e)," it is noticeable that neither this witness nor any other seems to have said that in defendants' business any cotton was ever delivered to or by the customer. Cf. Hyman v. Hay (C. C. A. 5) 277 F. 898; also Dunlap v. Perry, 191 Ky. 290, 230 S. W. 291

Jesse McNeill seems never to have signed and returned to defendants the forms of acknowledgment of confirmation referred to. His brother, who seems to have had a fair acquaintance with the course of business at the office of defendants' correspondent at Hickman, where the orders here in question were taken, testified that this office "was all the time trying to get people to give John F. Clark & Co. their business. They bought and sold cotton on future delivery and required a margin. * * * He presumably Jesse McNeill dealt with them, and in the course of business men and women came there to deal with John F. Clark & Co.,...

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7 practice notes
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...v. Stalker, 63 N.J.Eq. 596, 52 A. 1120; Benson Stabeck Co. v. Reservation Farmers' Grain Co., 62 Mont. 254, 205 P. 651; Clark v. McNeil, 25 F.2d 247; Andrews v. George M. Shutt & Co., 44 F.2d 337. Paul B. Johnson, and F. M. Morris, both of Hattiesburg, for appellees. This suit is based upon......
  • Rochester Civic Theatre, Inc. v. Ramsay, No. 18352.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 17, 1966
    ...find a verdict against the moving party on any one of multiple independent issues or counts the motion must be denied. Clark v. McNeill, 25 F.2d 247 (6 Cir. 1928); Vareltzis v. Luckenbach Steamship Company, 258 F.2d 78 (2 Cir. Concededly, in a case where there is but a single issue a motion......
  • Johnson v. Ranes, No. A8102-00689
    • United States
    • Court of Appeals of Oregon
    • April 11, 1984
    ...find a verdict against the moving party on any one of multiple independent issues or counts the motion must be denied. Clark v. McNeill, 25 F.2d 247 (6 Cir.1928); Vareltzis v. Luckenbach Steamship Company, 258 F.2d 78 (2 " * * * Concededly, in a case where there is but a single issue a moti......
  • Brown v. McGraw-Edison Co., GRAW-EDISON
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 1, 1984
    ...Inc. v. Ramsay, 368 F.2d 748, 752 (8th Cir.1966); Vareltzis v. Luckenbach Steamship Co., 258 F.2d 78, 80 (2d Cir.1958); Clark v. McNeill, 25 F.2d 247, 248 (6th 5 The electrical shut-off device consisted of a safety guard or gate resting across the front of the machine some seven inches befo......
  • Request a trial to view additional results
7 cases
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...v. Stalker, 63 N.J.Eq. 596, 52 A. 1120; Benson Stabeck Co. v. Reservation Farmers' Grain Co., 62 Mont. 254, 205 P. 651; Clark v. McNeil, 25 F.2d 247; Andrews v. George M. Shutt & Co., 44 F.2d 337. Paul B. Johnson, and F. M. Morris, both of Hattiesburg, for appellees. This suit is based upon......
  • Rochester Civic Theatre, Inc. v. Ramsay, No. 18352.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 17, 1966
    ...find a verdict against the moving party on any one of multiple independent issues or counts the motion must be denied. Clark v. McNeill, 25 F.2d 247 (6 Cir. 1928); Vareltzis v. Luckenbach Steamship Company, 258 F.2d 78 (2 Cir. Concededly, in a case where there is but a single issue a motion......
  • Johnson v. Ranes, No. A8102-00689
    • United States
    • Court of Appeals of Oregon
    • April 11, 1984
    ...find a verdict against the moving party on any one of multiple independent issues or counts the motion must be denied. Clark v. McNeill, 25 F.2d 247 (6 Cir.1928); Vareltzis v. Luckenbach Steamship Company, 258 F.2d 78 (2 " * * * Concededly, in a case where there is but a single issue a moti......
  • Brown v. McGraw-Edison Co., GRAW-EDISON
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 1, 1984
    ...Inc. v. Ramsay, 368 F.2d 748, 752 (8th Cir.1966); Vareltzis v. Luckenbach Steamship Co., 258 F.2d 78, 80 (2d Cir.1958); Clark v. McNeill, 25 F.2d 247, 248 (6th 5 The electrical shut-off device consisted of a safety guard or gate resting across the front of the machine some seven inches befo......
  • Request a trial to view additional results

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