Fred W. Mears Heel Co. v. Walley

• Citation: 71 F.2d 876
• Decision Date: 12 July 1934
• Docket Number: No. 2890.,2890.
• Parties: FRED W. MEARS HEEL CO., Inc., v. WALLEY.
• Court: U.S. Court of Appeals — First Circuit

71 F.2d 876 (1934)

FRED W. MEARS HEEL CO., Inc., v. WALLEY.

No. 2890.

Circuit Court of Appeals, First Circuit.

June 14, 1934.

Rehearing Denied July 12, 1934.

Walter Bates Farr, of Boston, Mass., and Freeman & Freeman, of Portland, Me. (Eben Winthrop Freeman, of Portland, Me., on the brief), for appellant.

Francis W. Sullivan, of Portland, Me. (Lauren M. Sanborn, of Portland, Me., on the brief), for appellee.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

This is an appeal from a judgment of the District Court of Maine in an action at law to recover damages for failure to accept certain lumber which the defendant-appellant agreed to purchase of the plaintiff-appellee. The parties will be hereinafter referred to as plaintiff and defendant. The plaintiff is a resident of Sherbrooke in the Dominion of Canada. The amount of the judgment was $5,416.16, with interest from August 3, 1933.

The record states that "By agreement of counsel this case was heard before Judge Peters without the aid of a jury." If a jury trial was not duly waived in accordance with section 773, title 28, USCA, the judge in hearing the case acted as an arbitrator or referee, and the only issue of law for consideration of the court is whether the pleadings support the judgment. Campbell v. United States, 224 U. S. 99, 105, 32 S. Ct. 398, 56 L. Ed. 684.

Assuming a jury was duly waived in this case under section 773, title 28, USCA, in order to raise a question of law, special findings of fact must be made and exceptions taken to such findings on the ground that they are not supported by any evidence, or a special finding of all the ultimate facts must be made, in which case, on motion for judgment by either party, the correctness of the trial court's final conclusion may be tested in a court of review.

"As to what is necessary in special findings or in an agreed statement of facts, the authorities are decisive. It is held that upon a trial by the court, if special findings are made, they must be not a mere report of the evidence, but a finding of those ultimate facts on which the law must determine the rights of the parties; and if the finding of facts be general, only such rulings of the court in the progress of the trial can be reviewed as are presented by a bill of exceptions; and in such case the bill cannot be used to bring up the whole testimony for review, any more than in a trial by jury." Wilson v. Merchants' Loan & Trust Co., 183 U. S. 121, 127, 22 S. Ct. 55, 58, 46 L. Ed. 113.

"The opinion of the trial judge, dealing generally with the issues of law and fact and giving the reasons for his conclusion, is not a special finding of facts within the meaning of the statute. Insurance Co. v. Tweed, 7 Wall. 44, 51, 19 L. Ed. 65; Dickinson v. Planters' Bank, 16 Wall. 250, 257, 21 L. Ed. 278; Raimond v. Terrebonne Parish, 132 U. S. 192, 194, 10 S. Ct. 57, 33 L. Ed. 309; British Mining Co. v. Baker Mining Co., 139 U. S. 222, 11 S. Ct. 523, 35 L. Ed. 147; York v. Washburn, 64 C. C. A. 132, 129 F. 564, 566; United States v. Stock Yards Co., 92 C. C. A. 578, 167 F. 126, 127. And it is settled by repeated decisions, that in the absence of special findings, the general finding of the court is conclusive upon all matters of fact, and prevents any inquiry into the conclusions of law embodied therein, except in so far as the rulings during the progress of the trial were excepted to and duly preserved by bill of exceptions, as required by the statute. (Citations omitted.) To obtain a review by an appellate court of the conclusions of law a party must either obtain from the trial court special findings which raise the legal propositions, or present the propositions of law to the court and obtain a ruling on them." Fleischmann Const. Co. v. United States, 270 U. S. 349, 355, 356, 46 S. Ct. 284, 287, 70 L. Ed. 624.

Again, in Humphreys v. Third National Bank (C. C. A.) 75 F. 852, 855, the court said: "He should request special findings of fact by the court, framed like a special verdict of a jury, and then reserve his exceptions to those special findings, if he deems them not to be sustained by any evidence; and if he wishes to except to the conclusions of law drawn by the court from the facts found he should have them separately stated and excepted to. In this way, and in this way only, is it possible for him to review completely the action of the court below upon the merits."

Also see Norris v. Jackson, 9 Wall. 125, 128, 19 L. Ed. 608; Cooper v. Omohundro, 19 Wall. 65, 69, 22 L. Ed. 47; Lehnen v. Dickson, 148 U. S. 71, 13 S. Ct. 481, 37 L. Ed. 373; St. Louis v. Western Union Telegraph Co., 166 U. S. 388, 390, 17 S. Ct. 608, 41 L. Ed. 1044; Vicksburg, etc., Ry. Co. v. Anderson-Tully Co., 256 U. S. 408, 415, 41 S. Ct. 524, 65 L. Ed. 1020; Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478; United States v. Smith (C. C. A.) 39 F.(2d) 851.

The second count of the plaintiff's declaration was based on an order of the defendant, No. 1200, under date of July 19, 1929, for 250,000 feet of 8×4, and 150,000 feet of 9×4 maple plank at definite prices. The order contained the following provision: "(This order will be void if there is a tariff tax.)"

The third count was based on an order of the defendant, No. 1417, dated December 4, 1929, for...