Rush v. Newman

• Decision Date: 18 September 1893
• Docket Number: 269.
• Citation: 58 F. 158
• Parties: RUSH v. NEWMAN.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F. 158

RUSH v. NEWMAN.

No. 269.

United States Court of Appeals, Eighth Circuit.

September 18, 1893

C. N Sterry, E. D. Kenna, and F. M. Bentley, for plaintiff in error.

James R. Hallowell and Montgomery Hallowell, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

CALDWELL Circuit Judge.

On the 12th day of May, 1891, L. Newman, the plaintiff, filed his petition in the court below against J. W. Rush, the defendant, alleging that on the 19th of June, 1888, the defendant executed and delivered to the plaintiff the following contract:

'In consideration of Mr. L. Newman taking 20 shares of the stock of the First National Bank of Dighton, and paying for same at the rate of $104 per share, total $2,080, I agree, at the end of one or two years, at the option of Mr L. Newman, to take the said stock off his hands and pay him the amount he paid for it, $2,080, and interest at the rate of twelve per cent. per annum on his investment if the bank should fail to make a cash dividend to the amount thereof. In that case I agree to give him the amount he gave for his stock, should he request me to take it off his hands.

'J. W. Rush.'

The petition alleges that the plaintiff subscribed for the 20 shares of stock, and paid therefor at the rate of $104 per share, and that the inducement to the purchase was the covenants of the defendant contained in the agreement; that at the end of two years from the date of the contract the bank failed to make a cash dividend to the amount mentioned in the agreement, and failed at all times to make such dividend; that the plaintiff notified the defendant of such failure, and of his election to return the stock, and have the defendant pay him the amount called for in the agreement and tendered to the defendant the certificate of stock for the 20 shares duly indorsed, and demanded of him the $2,080 and 12 per cent. interest thereon, as per the terms of the agreement, which he refused to pay. There was a prayer for judgment for $2,080 and 12 per cent. interest thereon from the date of the contract. The answer was a general denial. The case was tried before the court, which found the issues for the plaintiff, and rendered judgment in his favor against the defendant for the amount claimed in the petition. The errors assigned are that the judgment rendered was not warranted by the pleadings, and that the damages allowed were excessive.

There is in the record what purports to be a special finding of facts by the court. But the record does not show that the parties, or their attorneys of record, filed with the clerk a stipulation in writing waiving a jury, as required by section 649 of the Revised Statutes of the United States. The recital in the record that 'both parties in open court having waived a jury, and agreed to trial before the court,' does not show a compliance with section 649. The following recitals in the record have been held insufficient for this purpose: 'The issue joined, by consent, is tried by the court, a jury being waived;' and 'the above cause coming on for trial, by agreement of parties, by the court without the intervention of a jury;' and 'the parties having stipulated to submit the case for trial by the court without the intervention of a jury;' and 'said cause being tried by the court without a jury, by agreement of parties;' and 'upon the trial of this cause before the Hon. S. H. Treat, sitting as circuit judge, a jury being waived by both parties,'--Bond v. Dustin, 112 U.S. 604, 608, 5 S.Ct. 296; and 'jury waived tentatively,' and 'finding of facts and verdict,'--Merrill v. Floyd, 2 C. C. A. 58, 50 F. 849. In the absence of a statute authorizing it, the finding of issues of fact by the court is not a judicial act of which this court can take any notice. Campbell v. Boyreau, 21 How. 223; Rogers v. U. S., 141 U.S. 548, 12 S.Ct. 91; Merrill v. Floyd, 2 C. C. A. 58, 50 F. 849. The sufficiency of the facts found by the lower court to support the judgment can only be considered by this court when a jury has been waived in writing, as provided in section 649. When a jury has not been thus waived, the facts found by the lower court cannot be noticed by the appellate court for any purpose, and the case stands as though the judgment of the lower court had been rendered on the general verdict of a jury; and the only question this court can consider is the sufficiency of the declaration to support the judgment. Flanders v. Tweed, 9 Wall. 425; Kearney v. Case, 12 Wall. 275; Alexander Co. v. Kimball, 106...