James v. Evans

• Decision Date: 17 December 1906
• Docket Number: 21.
• Citation: 149 F. 136
• Parties: JAMES v. EVANS.
• Court: U.S. Court of Appeals — Third Circuit

149 F. 136

JAMES v. EVANS.

No. 21.

United States Court of Appeals, Third Circuit.

December 17, 1906

J. C Swartley, for plaintiff in error.

George T. Hunsicker, for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and BRADFORD, District Judge.

BRADFORD District Judge.

Regina Evans, the defendant in error, brought in December, 1904, an action of trespass in the circuit court of the United States for the eastern district of Pennsylvania against Wynne James the plaintiff in error, and Henry G. Freeman, Jr. In her declaration she set forth in substance, among other things that she was the owner of a farm of ninety-five acres in Bucks county, Pennsylvania, of the value of $5,400 above all incumbrances, and of live stock, crops and farming implements thereon of the value of $3,000; that Freeman was the owner of four old brick houses in Philadelphia assessed at the sum of $21,800, which was in excess of their value; that James was an attorney at law and was employed by the plaintiff for the purpose of effecting a cash private sale of her farm and property thereon; that Freeman and James 'did fraudulently, deceitfully, maliciously and unlawfully conspire, combine, confederate and agree together to cheat and deprive plaintiff of her said real and personal property by effecting a fraudulent exchange thereof for a worthless equity in said houses' and by other deceitful and fraudulent devices particularly set forth in the declaration; and that the defendants succeeded in accomplishing the purpose of their conspiracy. The defendants severally having pleaded not guilty, the case went to trial and May 3, 1905, a sealed verdict was brought in and at the same time a written memorandum signed by all the jurors was handed to the clerk, which was in the following words and figures:

'We, the undersigned, jury in the above stated case, find in favor of the plaintiff for $7,273.33, and against Henry G. Freeman, Jr., one of the defendants.'

The verdict was formally recorded as follows:

'And afterwards, to wit, on the third day of May, A.D. 1905, the jurors aforesaid upon their oaths and affirmations respectively do say that they find for plaintiff and against Henry G. Freeman, Jr., one of the defendants, and assess the damages at seven thousand two hundred and seventy three and 33/100 dollars ($7,273.33).'

Freeman, through his counsel, moved May 6, 1905, for a new trial and also in arrest of judgment. In support of the motion for a new trial he urged that the court erred, among other things, in charging the jury as follows:

'It is charged in the declaration that there was a conspiracy between these two defendants for the purpose of making these false representations to her, in order to induce her to enter into this transaction whereby she was defrauded. Now in an action like this for deceit or fraudulent misrepresentation, which results in damage, the matter of conspiracy is not the matter which entitles a plaintiff to a recovery. Whether there is a conspiracy charged or proven, or not, if the evidence shows that by false and fraudulent representations of both or one of them, this plaintiff has suffered a damage, she would be entitled to recover against the one perpetrating the wrong upon her; or if both of them had done the wrong, together or separately, whether there was a conspiracy proven or not. If you find that both or one of them perpetrated and have done this wrong, if any wrong was done, the plaintiff would be entitled to recover for the amount of the damage suffered against either one or both, as you find the evidence to be, if you find in her favor, and for such an amount as the evidence would warrant.' And further:

'If, however, you find that there is no conspiracy, and one or the other made false representations of material facts in regard to this transaction which resulted in damage, then you have a right to say that that one is responsible here.'

So, too, among the reasons in support of the motion in arrest of judgment substantially the same ground was taken, as follows:

'2. The verdict of the jury having established that there was no fraud or conspiracy as alleged in the declaration, between the said Henry G. Freeman, Jr., and his co-defendant Wynne James, under the pleadings and issue in the case, no verdict could in law be found by the jury against the defendant Freeman individually, and no judgment should be entered on the same.'

The counsel for James filed May 10, 1905, with the clerk of the court below a praecipe for the entry of judgment in favor of his client upon the above mentioned verdict, and thereupon judgment was noted upon the record accordingly. The motion for a new trial was granted September 6, 1905, the court, among other things, saying:

'Taking oral and documentary evidence together there was ample proof to sustain the plaintiff's claim, and the jury found a verdict for seven thousand two hundred and seventy-three and thirty-three hundredths dollars ($7,273.33) in favor of claimant but only against Freeman, one of the defendants. * * * The verdict against Freeman alone cannot be sustained in view of the fact that the statement claims for an unlawful combination between Freeman and plaintiff's attorney, James, and the evidence submitted by her tended to prove that allegation, and a new trial should therefore be granted, and it is so ordered.'

It is fairly inferable from this language that the court intended and ordered a new trial as to both James and Freeman. The plaintiff, after the expiration of the term in which the verdict was rendered and judgment entered in favor of James filed a petition in the court below November 2, 1905, praying the court 'to reinstate the motions for a new trial and in arrest of judgment, and grant a reargument thereof. ' The petition recited, among other things, the rendition of the verdict, the filing of the motions for a new trial and in arrest of judgment, the judgment on verdict in favor of James and the order granting a new trial. It alleged in substance, among other things, that the plaintiff and her counsel had believed that a new trial had been awarded as to both defendants, and discovered only October 27, 1905, that a judgment had been entered in favor of James; that owing to the condition of the record it might be contended by the defendants that the judgment in favor of James was a final judgment which could not be set aside by the court; that it might also be contended by them that such judgment 'eliminates the element of conspiracy, and plaintiff, if entitled to proceed, can only do so in an action of deceit against Freeman, wherein evidence of declarations and conduct of James in the absence of Freeman will be inadmissible'; that, as the plaintiff was advised and believed, the charge of the court to the jury was correct with respect to the right of the plaintiff to recover against both or either of the defendants, as the facts should warrant, and, therefore, the motions for a new trial and in arrest of judgment should have been denied; that the then condition of the record was such that 'the plaintiff is deprived of all remedy against the defendants or either of them in her action of conspiracy'; and that 'unless plaintiff's case, if re-tried, retains its original form of conspiracy against both defendants, and she have a new trial as to both, she is without redress.' In disposing of the petition January 8, 1906, the court below considered with some care the scope and...