Emanuel v. Kansas City Title & Trust Co.

• Decision Date: 27 May 1942
• Docket Number: No. 12155.,12155.
• Parties: EMANUEL v. KANSAS CITY TITLE & TRUST CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

127 F.2d 175 (1942)

EMANUEL v. KANSAS CITY TITLE & TRUST CO. et al.

No. 12155.

Circuit Court of Appeals, Eighth Circuit.

April 23, 1942.

Rehearing Denied May 27, 1942.

Raymond G. Barnett, of Kansas City, Mo. (John R. James, of Kansas City, Mo., on the brief), for appellant.

Arthur N. Adams, of Kansas City, Mo. (Arthur N. Adams, Jr., of Kansas City, Mo., on the brief), for appellees.

Before SANBORN and WOODROUGH, Circuit Judges, and TRIMBLE, District Judge.

SANBORN, Circuit Judge.

The appellant was plaintiff in the court below, and the appellees were defendants. For convenience, the appellant will be referred to as plaintiff, and the appellees will be referred to as defendant.¹ The action was for damages for breach of an escrow agreement. The issues were, (1) whether the alleged agreement was entered into; (2) whether, if entered into, it was breached; and (3) the amount of damages sustained by plaintiff. The issues were tried and submitted to a jury, which returned a verdict for the defendant. After plaintiff's motion for a new trial was denied, he appealed to this Court from the judgment entered upon the verdict.

It is necessary first to determine what questions are before this Court. The plaintiff challenges the sufficiency of the evidence to support the judgment for the defendant. He made no motion for a directed verdict. He asserts that, because of the attitude of the trial court, disclosed by statements made when the defendant moved for a directed verdict, it would have been useless for plaintiff to have made such a motion. But if the plaintiff intended to appeal in case the verdict went against him and to challenge the sufficiency of the evidence to support a judgment for the defendant, it was essential that he request the trial court to direct the jury to return a verdict in his favor and that he secure from that court a ruling upon his request. In the absence of such a request and ruling, the question of the sufficiency of the evidence to support the verdict and judgment is not subject to review by this Court. Ayers v. United States, 8 Cir., 58 F.2d 607, 608; Combs v. United States, 8 Cir., 65 F.2d 787. This Court is a court of review and is without jurisdiction to retry an action such as this and to enter the judgment which it thinks should have been entered in the trial court. Geiger v. Tramp, 8 Cir., 291 F. 353, 355; United States v. Washington Dehydrated Food Co., 8 Cir., 89 F.2d 606, 609, 610; Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 444. We are therefore precluded from concerning ourselves with the question of the sufficiency of the evidence to support the judgment.

The plaintiff asserts that the court erred in denying his motion for a new trial. Under the practice in the Federal courts, such a motion is addressed to the discretion of the trial court, and its action thereon is not subject to review. Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481, 53 S.Ct. 252, 77 L.Ed. 439; Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 436; State of Minnesota v. United States, 8 Cir., 125 F.2d 636, 638.

The remaining points, then, which are for consideration in this case are those directed at the instructions of the court. The plaintiff asserts that the court, in its instructions, misstated the terms of the contract which the plaintiff asserted he had with the defendant, and that it was error for the court to give to the jury the usual instruction to the effect that they were the sole judges of the credibility of the witnesses and of the weight of the evidence.

In order that the situation which confronted the trial court may be visualized, it is necessary to give a general outline of the facts which gave rise to the controversy. The plaintiff owned 110 acres of land in Jackson County, Missouri. In 1924 he and his wife had given a first mortgage upon it for $5,000 due October 10, 1934. In 1926 they had contracted to sell 70 acres to a man by the name of Bales, who agreed, as a part of the purchase price, to pay off the first mortgage and to pay taxes on the 110 acres. The terms of the contract were such that, if they were carried out, the mortgage would be paid off at its maturity date, Bales would have 70 acres, and the plaintiff and his wife would have a 40-acre tract free of incumbrances. This 40-acre tract was improved and was plaintiff's home. Bales assigned his contract to Marion D. Waltner, who undertook to carry it out. He had not by October 10, 1934, paid off the mortgage or reduced it, but he had paid interest. An extension of the mortgage for one year was procured from the Continental Illinois Bank & Trust Company (hereinafter called the Bank), which held the mortgage as trustee. On October 9, 1935, Waltner notified plaintiff that he was ready to carry out the Bales contract and to pay off the mortgage if plaintiff would repay a $100 loan which Waltner had made him and would reimburse the Bank for an insurance premium. The plaintiff made arrangements to secure the necessary funds. Waltner had arranged with the Bank that it accept in part payment of the $5,000 mortgage a mortgage for $3,500 covering the 70 acres which he was to acquire when the $5,000 mortgage was paid and released. On October 14, 1935, the Bank sent to Eaton R. Johnson, its field representative, the $5,000 note and mortgage with accompanying papers. It also enclosed a note and a mortgage for $3,500, covering the 70 acres, to be signed by Mary V. Blevins (the person designated by Waltner to take title to the 70 acres), and directed that Waltner, also, was to sign the note. The Bank in its letter of transmittal gave to its representative instructions that plaintiff and his wife were to deed the 70 acres referred to to Mary V. Blevins; that $1,846.20 ($1,500 of principal, $300 interest, and $46.20, insurance premium) was to be collected and remitted in Chicago exchange, that taxes on the entire 110 acres for 1935 and prior years were to be paid by Waltner together with all expenses and recording fees, and that the abstract of title was to be continued to show the completed transaction. The letter contained the following: "To facilitate the closing of this transaction it could be handled under a guarantee policy from the Kansas City Title and Trust Company." Johnson turned over the papers and the letter of instructions which had been sent him by his principal to the defendant to work out the proposed arrangement for the satisfaction and release of the $5,000 mortgage. On or about November 6, 1935, Waltner deposited $1,750 with the defendant. On November 7, 1935, plaintiff and his wife, at Johnson's suggestion, called at defendant's office and were advised that it would be necessary for them to deposit $153.20, — $100 to repay Waltner for a loan, $7 to correct a title defect, and $46.20 to reimburse the holder of the mortgage for money advanced as an insurance premium. On November 8, 1935, the plaintiff paid to the defendant $153.20, and executed and left with it a deed to Mary V. Blevins covering the 70-acre tract described in the Bales contract. On November 14, 1935, the defendant wrote the plaintiff that Waltner "feels" that plaintiff should pay the cost of continuing the abstract, $35.50; the release fees for two mortgages, $1; interest on the first mortgage from October 10 to November 20, 1935, $12; and one-half of the escrow fee, $7.50; a total of $56. The defendant asked the plaintiff to deposit a $500 second mortgage, which had been paid but had not been released of record. On November 15, 1935, plaintiff delivered this second mortgage, and, after some protest, paid the defendant $56. On December 2, 1935, the plaintiff was advised by Johnson that Waltner had not paid the taxes on the 110 acres of land, and that the holder of the $5,000 mortgage was losing patience. On December 3, 1935, plaintiff called at defendant's office and was told that Waltner had demanded the return of his $1,750 and that the defendant intended to return his deposit to him and to return all papers and other deposits to those to whom they belonged. The plaintiff protested against the return of Waltner's $1,750 deposit, refused to accept the return of the money which plaintiff had deposited, and demanded that defendant retain all papers and moneys which had been deposited with it. The defendant returned the $1,750 to Waltner and returned the unreleased $5,000 mortgage to the Bank. This mortgage was subsequently foreclosed, and the 110 acres of land were sold at public sale for $4,010, leaving a deficiency for which the plaintiff was liable. The plaintiff was unable to redeem, and lost the property. His claim in this suit was that the defendant had promised and agreed that if he would make the payments which he did make, "it would hold all of said moneys and said documents, together with the sum of $153.20, theretofore paid to said defendant by plaintiff, and the documents theretofore delivered to it by said Waltner for the purpose of discharging the aforesaid $5,000.00 mortgage, and therewith would secure and procure the discharge of said mortgage and the release thereof."

The plaintiff's evidence tended to establish the...