Miller-Crenshaw Co. v. Colorado Mill & Elevator Co.

• Decision Date: 20 July 1936
• Docket Number: No. 10585.,10585.
• Citation: 84 F.2d 930
• Parties: MILLER-CRENSHAW CO. v. COLORADO MILL & ELEVATOR CO.
• Court: U.S. Court of Appeals — Eighth Circuit

84 F.2d 930 (1936)

MILLER-CRENSHAW CO. v. COLORADO MILL & ELEVATOR CO.

No. 10585.

Circuit Court of Appeals, Eighth Circuit.

July 20, 1936.

Arthur L. Adams, of Jonesboro, Ark., for appellant.

Glen A. Wisdom, of Kansas City, Mo. (Azro L. Barber, Elbert A. Henry, and J. A. Tellier, all of Little Rock, Ark., on the brief), for appellee.

Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.

GARDNER, Circuit Judge.

This is an action at law brought by appellee as plaintiff, to recover damages for breach of certain contracts for the purchase of flour. For convenience, we shall refer to the parties as they appeared below.

At the close of all the evidence, both sides moved for a directed verdict, and the court granted the motion of plaintiff, and directed the jury to return a verdict for $2,789.69. From the judgment entered on that verdict, defendant prosecutes this appeal.

Both parties having moved for a directed verdict, all disputed questions of fact were submitted to the court and both parties are concluded by its findings. We are limited to a consideration of the correctness of the court's conclusion on the law, and must affirm the judgment if there is any substantial evidence to support it. Such action by the parties is equivalent to a declaration that there are no disputed questions of fact, or a request that the trial judge find the facts. Williams v. Vreeland, 250 U.S. 295, 39 S.Ct. 438, 63 L.Ed. 989, 3 A.L.R. 1038; Beuttell v. Magone, 157 U. S. 154, 15 S.Ct. 566, 39 L.Ed. 654; Sena v. American Turquoise Co., 220 U.S. 497, 31 S.Ct. 488, 55 L.Ed. 559; American Surety Co. v. Republic Casualty Co. (C.C.A.8) 42 F.(2d) 807; Southern Surety Co. v. Fidelity & Casualty Co. (C.C.A.8) 50 F. (2d) 16; Springfield Fire & Marine Ins. Co. v. National Fire Ins. Co. (C.C.A.8) 51 F.(2d) 714, 76 A.L.R. 1287; Detroit Fidelity & Surety Co. v. United States (C. C.A.8) 59 F.(2d) 565; New York Life Ins. Co. v. McCreary (C.C.A.8) 60 F.(2d) 355. The verdict in this case must, therefore, be given the same effect as a verdict regularly returned by the jury.

As its first assignment of error, defendant urges that the court erred in refusing to dismiss the suit for want of jurisdiction at the close of all the testimony, because, it is alleged, counsel for plaintiff, by permission of the court, amended its complaint so as to show that the amount in controversy was less than $3,000, exclusive of interest and costs. First, it should be observed that we have searched the record, and we do not find that there was any motion to dismiss for want of jurisdiction interposed; and, second, it is noted that plaintiff's request to amend its complaint was not granted by the court. The court simply directed a verdict for an amount less than that claimed in the complaint, and less than the amount necessary to confer jurisdiction, had this been disclosed by the pleadings. As the matter goes to the jurisdiction of the court, however, we shall notice the contention, even though it was not properly brought to the attention of the lower court. McNutt v. General Motors Acceptance Corp., 56 S.Ct. 780, 80 L.Ed. ___; Equitable Life Assur. Society v. Rayl (C.C.A.8) 16 F.(2d) 68; Dyar v. McCandless (C.C.A.8) 33 F.(2d) 578; Robinson v. Edler (C.C.A.9) 78 F.(2d) 817.

The complaint asked for damages in the sum of $4012.03, for the alleged breach of certain contracts for the sale of flour. When counsel for plaintiff moved for a directed verdict, he conceded that his proof was not sufficient to entitle him to recover for damages for the alleged sale of 500 barrels of flour included in his cause of action. Generally speaking, with certain exceptions not here material, the amount in controversy for jurisdictional purposes is to be determined not by the amount plaintiff is able to prove, but by the amount demanded in his complaint, if such demand is made in good faith. By good faith is meant that the sum demanded in the pleading is the real matter put in dispute, and not so clearly fictitious as to make it legally certain that the amount alleged was merely to confer jurisdiction because clearly beyond reasonable expectation of recovery. This is particularly true in an action sounding in damages. Southwestern T. & T. Co. v. Walker Grain Co. (D.C.) 3 F. (2d) 819; Kunkel v. Brown (C.C.A.4) 99 F. 593; O. J. Lewis Mercantile Co. v. Klepner (C.C.A.2) 176 F. 343; Interstate Bldg. & Loan Ass'n v. Edgefield Hotel Co. (C.C.) 109 F. 692; Put-In-Bay Waterworks, L. & Ry. Co. v. Ryan, 181 U.S. 409, 21 S.Ct. 709, 45 L.Ed. 927; Hilton v. Dickinson, 108 U.S. 165, 2 S.Ct. 424, 27 L.Ed. 688; Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729.

The record discloses that proof was submitted by plaintiff in support of its claim for damages on account of the alleged sale of 500 barrels of flour, and it is argued that the evidence in support of this claim was substantial. On examination of the record, we think it cannot be said that the claim for damages on this item was fictitious or made in bad faith.

It is charged that the court "erred at the close of all the testimony in directing the jury to return a verdict for the plaintiff of $2789.69." This assignment, liberally...