McCrea v. Parsons

• Citation: 112 F. 917
• Decision Date: 07 January 1902
• Docket Number: 780.
• Parties: McCREA v. PARSONS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

112 F. 917

McCREA v. PARSONS et al.

No. 780.

United States Court of Appeals, Seventh Circuit.

January 7, 1902

Roland D. Whitman, for plaintiff in error.

Frank F. Reed, for defendants in error.

Before JENKINS and GROSSCUP, Circuit Judges, and BUNN, District Judge.

PER CURIAM.

The defendants in error, constituting the co-partnership of E. M Parsons & Sons, brought suit against the plaintiff in error and one Walters, who was subsequently discharged out of the case by reason of his discharge in bankruptcy, to recover upon an account stated the sum of $9,476.50. The defendants pleaded the general issue, and filed therewith three special pleas, substantially to the effect that the cause of action arose from certain gains and profits alleged to have accrued to the plaintiffs in the buying and selling of grain on the board of trade in the city of Chicago by the defendants on behalf of, and as the agents of, the plaintiffs; that the purchases and sales were colorable only; that none of the grain was intended by the parties to the transactions to be received or delivered, but that the intention was that the transactions should be adjusted and settled on the difference in the price of the grain and the price of like grain on the board at the date of maturity of the contracts, and in no other way; and that such transactions were illegal and void. A general demurrer to these pleas was sustained, with leave to withdraw the plea of the general issue and to amend the special pleas. This order seems not to have been acted upon, and subsequently the defendants had leave to file additional pleas instanter; the demurrer to the original plea to stand to the additional pleas. This further plea was substantially of like effect as the other pleas except that, instead of conceding that the moneys were received by the defendants as agents, it charged 'that the defendants had given to the plaintiffs the privilege of dealing in options with or through them on the Board of Trade of the City of Chicago, and had agreed with them that if there was a loss by such dealing the plaintiffs were to pay such loss to them,' and 'if there was a gain or winning the defendants were to pay to the plaintiffs such loss or winnings,' and 'that all purchases, dealings and sales made by the said defendants for and on behalf of the plaintiffs were colorable only, and were, in effect gambling contracts between the plaintiffs and the defendants. ' The demurrer to this plea was sustained, and the order, as entered, provided that 'the defendant has leave to refile the plea of general issue,' and such a plea was in fact thereafter filed. Subsequent to the judgment that order was expunged as erroneous, and an order entered sustaining the demurrer to the additional plea; 'the plea of general issue heretofore filed herein to stand. ' The cause was tried by the court, a jury being waived, and there was a general finding by the court in favor of the plaintiffs below, upon which judgment was entered.

The main question presented at the bar is whether an agent receiving moneys, the proceeds of transactions between his principal and others, which are condemned by the statute, may retain from his principal the moneys so collected for him. We are of opinion that the record does not come to us in such shape that we can properly consider the question. The trial was by the court without a jury and there is no special finding of fact. We are limited in such case to the rulings of the court, when properly preserved; for we have no right to inquire into the special facts and conclusions of law upon which that general finding rests. Reed v. Stapp, 3 C.C.A. 244, 52 F. 641; Distilling & Cattle Feeding Co. v. Gottschalk Co., 13 C.C.A. 618, 66 F. 609; Boardman v. Toffey, 117 U.S. 271, 6 Sup.Ct. 734, 29 L.Ed. 898; Wilson v. Trust Co., 22 Sup.Ct. 54, 46 L.Ed.-- .

At the conclusion of the plaintiffs' evidence the plaintiff in error moved the court to find in his favor upon certain grounds stated. The motion was overruled, and exception taken. Subsequently he offered evidence in his own behalf and there was no renewal of this motion at the close of the testimony. The motion, therefore, is waived, and cannot be assigned for error. ...