Eastern Express, Inc. v. Mack Warehouse Corporation

Decision Date08 January 1964
Docket NumberNo. 14445.,14445.
Citation326 F.2d 554
CourtU.S. Court of Appeals — Third Circuit
PartiesEASTERN EXPRESS, INC., Appellant, v. MACK WAREHOUSE CORPORATION and Eavenson & Levering Company.

David E. Rosenfeld, Terre Haute, Ind. (Donald J. Farage, Philadelphia, Pa., on the brief), for appellant.

William J. Toy, Philadelphia, Pa. (Paul Leo McSorley, Richard T. McSorley, Walter B. Gibbons, Philadelphia, Pa., on the brief), for appellees.

Before STALEY, HASTIE and SMITH, Circuit Judges.

HASTIE, Circuit Judge.

This is a suit by the purchaser of a tract of land in Philadelphia against the seller for damages caused by alleged deceit in the oral negotiations which brought about the sale. The buyer contends that Samuel Foyle, a Philadelphia real estate broker who acted as the seller's agent, willfully deceived the buyer's agent, David Rosenfeld, an Indiana lawyer, concerning the nature and condition of the subsoil.

The case was tried to a court sitting without a jury. The court found that Foyle had made no affirmative misrepresentations concerning soil conditions, that his failure to volunteer information on the subject was not fraudulent, and that Rosenfeld did not rely upon Foyle in this matter. Pursuant to those findings, judgment was entered for the defendant seller. The buyer has appealed, contending that the evidence does not support the trial court's fact finding.

Of course Pennsylvania principles of liability for deceit are controlling. However, this appeal presents only questions of rational judgment as to the probative value of evidence and of federal practice in appellate review of fact finding.

No one doubts that the appellant can prevail only if he demonstrates on the record that the trial court's fact finding was "clearly erroneous". United States v. U. S. Gypsum Co., 1948, 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746; Seideman v. Hamilton, 3d Cir. 1960, 275 F.2d 224. We examine the record with that burden in mind.

The ten-acre tract in question was wanted by the buyer, a common carrier by motor vehicle, for the construction of a truck terminal. It is agreed that the seller's agent, Foyle, knew this. Foyle also knew that the tract had once been the site of a brickyard and that it had been excavated to provide clay for brick and later filled. Subsequently, an emergency public housing project had been built there. But beyond this limited area of agreement, Foyle and Rosenfeld, both of whom testified at length, gave sharply conflicting accounts of their face-to-face negotiations which led to the sale. Rosenfeld testified that he asked Foyle concerning subsoil conditions, pointing out that the contemplated imposition of heavy structures and vehicles on the land required that the soil be "virgin" or "firm", and that Foyle assured him that the soil was firm. However, Foyle denied both that Rosenfeld made any inquiry about soil conditions and that Foyle made any representations in that regard. The court stated its belief that Foyle's version was correct and found that no representations had been made by him.

The trial occurred some six years after the conversations in question. The stated recollections of the two parties to the conversations were irreconcilably conflicting. Resolution of the issue thus posed depended very largely upon the credibility of the two opposing witnesses, neither of whom was disinterested. In such a situation, only the most persuasive showing of verisimilitude in the rejected testimony of one witness or of falsity in the...

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8 cases
  • Brown v. Buchanan
    • United States
    • U.S. District Court — Eastern District of Virginia
    • December 1, 1975
    ...Leduc Petroleums, Limited, 2 Cir., 456 F.2d 1170, appealed after remand 491 F.2d 380 (2d Cir. 1972); Eastern Express, Inc. v. Mack Warehouse Corp., 326 F.2d 554 (3d Cir. 1964), cert. denied 377 U.S. 966, 84 S.Ct. 1647, 12 L.Ed.2d 737; Fairchild v. C.I.R., 462 F.2d 462 (3d Cir. 1972); Huntle......
  • Union Electric Company v. Federal Power Commission
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • February 13, 1964
    ... ... "* * * Any person, association, corporation, State, or municipality intending to construct a ... ,\' * * *; and the suit is within the express language of the Urgent Deficiencies Act in that ... ...
  • Thomas v. Honeybrook Mines, Inc.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • May 28, 1970
    ...i. e., whether we are `left with a definite and firm conviction that a mistake has been committed\'. Eastern Express, Inc. v. Mack Warehouse Corp., 326 F.2d 554 (3 Cir. 1964); International Industries, Inc. v. Warren Petroleum Corp., 248 F.2d 696 (3 Cir. 1959), cert. denied, 355 U.S. 943, 7......
  • Speyer, Inc. v. Humble Oil and Refining Company
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 12, 1968
    ...i. e., whether we are "left with a definite and firm conviction that a mistake has been committed". Eastern Express, Inc. v. Mack Warehouse Corp., 326 F.2d 554 (3 Cir. 1964); International Industries, Inc. v. Warren Petroleum Corp., 248 F.2d 696 (3 Cir. 1959), cert. denied, 355 U.S. 943, 78......
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