Reading v. Texas & Pac R. Co.

• Decision Date: 26 October 1880
• Citation: 4 F. 134
• Parties: READING v. TEXAS & PACIFIC RAILWAY CO. [1]
• Court: U.S. District Court — Eastern District of Pennsylvania

4 F. 134

READING v. TEXAS & PACIFIC RAILWAY CO. ^[1]

United States Circuit Court, E.D. Pennsylvania.

October 26, 1880

W Henry Smith, for plaintiff.

George Biddle, for defendants.

This was an action of assumpsit. The declaration set forth an agreement by defendant to pay plaintiffs $10,000 for obtaining the consent of the bond holders of the Shreveport &amp Texas Railway Company to a scheme of reorganization, and averred performance by plaintiff, and that subsequently defendants were satisfied with such performance, had paid plaintiff $4,000 on account, and had acknowledged a balance of $6,000 to be due. Plea, non-assumpsit.

Plaintiff failed to prove, on the trial, performance of the contract on his part, but testified that defendants had waived the complete performance, and that they had paid him $4,000 on account, and acknowledged that a balance of $6,000 was due. This testimony was contradicted by defendant's witnesses. The jury found a verdict in favor of plaintiff for $1,000. Plaintiff alone moved for a new trial.

McKENNAN C.J., (orally.)

The plaintiff here has circumscribed his case within very narrow limits. He has by his declaration bound himself to prove a promise between himself and the defendants, by which the latter agreed, in consideration of whatever he did in performance of his contract, to pay him the balance he now claims. He has been permitted to present his case to the jury in a double aspect-- First, that his performance of his contract to obtain the signature of these parties to a paper to provide for the reorganization of this railroad was acceptable to the defendants, and that so he was entitled to recover; and, secondly, the ground that no matter how he performed his contract these matters were subsequently arranged between the parties, and a promise had been made to pay the ascertained balance of $6,000. As to the above grounds I was unable on the trial to see how the jury could find for the plaintiff. As to the first ground, the plaintiff was permitted to go into that, although under his declaration this was perhaps a mere matter of inducement. He was permitted, however, to show, if he could, performance of the contract. Now, it must be admitted that there was no actual performance of the contract proven. Taking all the evidence, I think the weight of it was against the plaintiff and so presented it to the jury.

On the second point, as to the subsequent arrangement...