Langdon v. Taylor

• Decision Date: 01 July 1910
• Docket Number: 236.
• Citation: 180 F. 385
• Parties: LANGDON v. TAYLOR.
• Court: U.S. Court of Appeals — Second Circuit

180 F. 385

LANGDON v. TAYLOR.

No. 236.

United States Court of Appeals, Second Circuit.

July 1, 1910

Kenefick Cooke & Mitchell (James McCormick Mitchell, of counsel), for plaintiff in error.

George B. Curtiss and Albert L. Watson, for defendant in error.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

COXE Circuit Judge.

The record presents no question of fact. At the close of the testimony both parties moved for the direction of a verdict. The question at issue is one of law and depends upon the construction of a written instrument. The facts are as follows:

Andrew Langdon, the defendant, was the owner of a tract of coal land at Carbondale, Pa. William H. Taylor, the plaintiff residing at Scranton, Pa., was a man of experience in buying selling, and leasing coal property. Langdon desiring to sell his coal land employed Taylor as his agent to effectuate the sale, the parties entering into a written agreement August 19, 1904. The paragraphs of this contract which it is necessary to consider are as follows:

'Second.-- When sale has been made, the party of the first part agrees to accept in full payment for the above property the sum of two hundred and fifty thousand dollars ($250,000.00) less the sum of ten thousand dollars ($10,000.00) to be paid by the party of the first part to the party of the second part as his commission, it being agreed that the party of the second part has the privilege of obtaining, and shall be paid as a further profit to himself, whatever amount may be secured for the property over and above the price of two hundred and fifty thousand dollars ($250,000.00) and further agrees to promptly deliver the said property with free and unencumbered title to the purchaser thereof.

'Third.-- It is distinctly understood and agreed that the period given to the party of the second part in which to dispose of this property is six (6) months from the date hereof, and it is further understood and agreed, that if the property should be sold or leased, or come under the control of, in any manner, any of the parties who may be named during the said six (6) months to the party of the first part, or any of his agents or representatives, by the party of the second part as probable purchasers or lessees, then in that event the commission herein ($10,000.00) is to be paid the party of the second part by the party of the first part upon the consummation of sale or lease to such parties whenever the same might occur.

'Sixth.-- If at the end of six (6) months from the date hereof, no sale or lease has been effected, then this agreement shall be null and void, except as to the provision in Section 'Three' which will remain in full force and effect for one (1) year thereafter.'

The plaintiff testified that on the day the agreement was made he named the Ontario & Western Railway, the Scranton Coal Company, and some others, as probable purchasers. In this he is corroborated by Morgan Davis, Jr., but the defendant denies that the Scranton Coal Company was so mentioned. It is suggested by counsel for defendant that the Scranton Coal Company, which became the ultimate purchaser, cannot be considered by the court for the reason that the assertion that it was named by the plaintiff is disputed by the defendant. We incline to the opinion that by moving for the direction of a verdict the defendant conceded all the facts as sworn to by the plaintiff, contending that, even in their most favorable aspect, they presented no ground for recovery. At the close of the evidence both sides moved for a direction and the defendant made no request that the question-- whether or not the coal company was named--should be submitted to the jury.

After the direction of the verdict the jury were discharged and the court adjourned for two months with permission to present the question again upon a motion for a new trial. On the adjourned day counsel for the defendant presented 44 special findings of fact which he requested the court to find and asked to be heard upon the question of fact 'as to whether the Scranton Coal Company was named by the plaintiff as a probable purchaser. ' The court very properly declined to make any special findings and the defendant reserved an exception.

He also filed 12 exceptions to the 'remarks of the court' in deciding the motions for the direction of a verdict. In making these requests and noting these exceptions counsel for the defendant has, we think, been misled into thinking that because the jury was instructed as to its verdict, the trial is to be considered as if it were a trial by the court, a jury having been waived.

Of course, after the verdict was directed and the jury discharged the record in the Circuit Court was made up. The trial judge could set the verdict aside and grant a new trial, but he could not admit new evidence or make new findings upon the evidence already in, or add to or subtract from the record in any way-- the trial was ended.

It seems probable that defendant's counsel are now in accord with these suggestions for they say in their brief, regarding their exceptions to the remarks of the court in directing the verdict:

'We have come to the conclusion that it was wholly unnecessary to file any such exceptions. The exception taken to the verdict directed was clearly sufficient to raise every question of law presented by the undisputed evidence.'

Whether or not counsel dispute the proposition that the Scranton Coal Company is to be considered as one of the probable purchasers named by the...