Mack v. Porter

• Decision Date: 04 February 1896
• Docket Number: 145.
• Citation: 72 F. 236
• Parties: MACK et al. v. PORTER.
• Court: U.S. Court of Appeals — Fourth Circuit

72 F. 236

MACK et al. v. PORTER.

No. 145.

United States Court of Appeals, Fourth Circuit.

February 4, 1896

G. B Caldwell (of Caldwell & Caldwell) and Chas. V. Meredith, for plaintiffs in error.

W. P Hubbard (Harry M. Russell on the brief), for defendant in error.

Before GOFF and SIMONTON, Circuit Judges, and Brawley, District Judge.

BRAWLEY District Judge.

This case is before us on a writ of error to the circuit court of the United States for the district of West Virginia, and grows out of exceptions taken and allowed at the trial wherein John Porter, the defendant in error, was plaintiff, and recovered a verdict against John M. Mack and G. B. Boren, in an action of assumpsit on a special oral contract, originally brought in the circuit court of Hancock county, W. Va., and removed into the United States court on the ground of diversity of citizenship. The record discloses 18 exceptions, 13 of which relate to the rejection and exclusion of testimony, and 5 to the allowance of amendments to the declaration at the time of the trial and to the refusal to grant a continuance on account thereof.

In the year 1891 John Porter held a controlling interest in the stock of a corporation engaged in the manufacture of brick in Hancock county, W. Va., known as the John Porter Company, the name of which, by proceedings subsequent to the transactions hereinafter mentioned, was changed to the Mack Company. He had sold and conveyed to said corporation certain real estate, upon which there were two liens, that will be hereafter designated as the 'Stewart Lien' and the 'Silvers Lien,' the amount due thereon being about $14,000, for which he was liable; and, to secure said company against loss by reason of said liens, he had given his note, and pledged stock of the John Porter Company to the amount of $15,000. He was indebted to G. B. Boren, and had pledged $15,000 of the stock of said company as security; also, to the Exchange Bank of Wheeling, which held, as security, $71,000 of the same stock. He had likewise, before that time, become indebted to John M. Mack, who had held some of the same stock as collateral to secure him as indorser, but this stock had been sold prior to the events now to be related, leaving an indebtedness of about $4,000 and some hard feelings. He was likewise indebted to the John Porter Company, on an open account, the unliquidated, but subsequently ascertained to amount to about $400. The stock held by the Exchange Bank had been transferred to one Jones, its cashier, as trustee, and stood in his name. The defendant Mack had made some effort, without result, to purchase this stock from Vance, the president of the bank, who was friendly to Porter, and unwilling to sell without his consent; and, as Porter had an equity of redemption, the bank had given to James M. Porter, a kinsman of the plaintiff, a power of attorney to negotiate its sale. Thus matters stood when, by an appointment arranged by Vance, the president of the bank, an interview was had at an hotel in Steubenville, Ohio, on December 1, 1891, between John Porter, James M. Porter, Vance, Boren, and De Haven Lance, who represented Mack. It was at that interview that the contract which gave birth to this controversy is alleged to have been made. The accounts given of this interview and contract are hazy and conflicting; but as it had been passed upon by a jury, and a verdict in favor of the plaintiff, Porter, has been sustained by the trial judge, it is beyond the province of this court to open up any question as to the merits of the respective contentions. The verdict of the jury settles the point that a contract was made, as alleged by the plaintiff in the action below; and, unless some reversible error is discovered in the proceedings leading to it, such verdict must stand.

On the part of John Porter it is contended that he was unwilling to part with his interest in the stock held by the bank, and in the stock held by Boren, unless he could sell all, and close out at the same time all interest in the John Porter Company, and be freed from all liability connected with it; and that the result of the negotiations on that day was an agreement that the bank should sell to Mack the stock held by it at a price which would give him $41,000, that Boren should take the stock held by him at 65 cents on the dollar, that the stock pledged to the John Porter Company should become the property of that company, and that he should be relieved of all liability on account of the Stewart and Silvers liens, and of the indebtedness against him on the books of that company, and that he should also be relieved of the indebtedness growing out of the previous transactions with Mack. On the part of the defendants, Mack and Boren, it is contended that the negotiations had no other object, and had no other result, than an agreement that Boren should take the stock held by him at 65 cents on the dollar, and that Mack should purchase the stock held by the bank at a figure to be settled between the bank and himself; the bank only stipulating with Porter that he should receive $41,000.

At this date the Stewart and Silvers liens were not due. Subsequently, when they fell due, they were paid by the Mack Company, which, in January, 1893, brought suit against John Porter, and recovered judgment against him for the sum of $14,772.27, this being the amount of the indebtedness on account of those liens and the open account. A credit of $5,700 as of February 21, 1893, being the proceeds of the sale of the pledged stock, was made on said judgment, and execution issued against the property of John Porter for the difference, which, with costs, amounts to $10,443.60. It is to recover this sum that this suit is brought, against Mack and Boren, upon the contract hereinabove referred to; and the case came on for trial before Judge Jackson and a jury, on the 15th of April, 1895, resulting in a verdict for the plaintiff for the amount claimed. The exceptions taken upon such trial are now to be considered,--those relating to the exclusion of testimony, each in its order; those relating to the allowance of amendments during the progress of the trial being considered together. And, to a proper apprehension of the bearing of the testimony, it may be well to state that the question submitted to the jury, and the only question, was whether a contract had been made at Steubenville, Ohio, on the 1st of December, 1891, as maintained by the plaintiff and denied by the defendants.

The first exception assigned as error relates to the exclusion of certain testimony respecting the preparation of a certain paper, which was offered by the defendant, and admitted in evidence. This paper is an agreement, bearing date and executed on December 2, 1891, between the Exchange Bank of Wheeling and John M. Mack, whereby the said bank agreed to sell to Mack the 710 shares of stock of the John Porter Company standing in the name of John J. Jones, trustee, and Jones, the trustee, at the foot of the agreement, makes a declaration that he holds the stock for the use and benefit of the Exchange Bank of Wheeling. The court excluded testimony which was offered to show that the original draft of; this agreement was prepared by the attorney of the bank, and that some additions were made by the attorney for Mack. We fail to see any possible relevancy to the real question at issue which this rejected testimony could have. When Porter consented to the sale and transfer of the stock, and received from the bank the purchase money therefor, the details of the transfer by the bank to another purchaser, and the terms of payment, were of no concern to him. In so far as this testimony tended to show that Mack was dealing with the bank alone, the defendant has had the benefit of it, with all the inferences that could possibly and legally flow from it by the admission of the paper itself, which, on its face, purports to be an agreement between him and the bank alone. It was of absolutely no consequence whether said agreement was prepared by the attorney for the bank or the attorney for Mack, by either or neither, or by both conjointly. There is no error in the rejection of the proffered testimony.

The second, third, and fourth exceptions refer to the amendments, and will be considered hereafter.

The fifth exception is to the ruling out of the question: 'At whose solicitation?' asked of the witness Lance, by the defendant's counsel, when he was giving an account of some negotiations for the purchase of the stock from Vance anterior to the 1st of December. Whether Lance had made an effort to buy, or whether Vance had made an effort to sell, prior to that date, can throw no light upon what took place at that meeting, as to whether the contract alleged was then entered into or not. If...