Stoll v. Loving

• Decision Date: 25 February 1903
• Docket Number: 1,126.
• Citation: 120 F. 805
• Parties: STOLL v. LOVING.
• Court: U.S. Court of Appeals — Sixth Circuit

120 F. 805

STOLL v. LOVING.

No. 1,126.

United States Court of Appeals, Sixth Circuit.

February 25, 1903

Thomas W. Bullitt and Wm. Marshall Bullitt, for plaintiff in error.

John L Dodd and David W. Baird, for defendant in error.

Before SEVERENS, Circuit Judge, and THOMPSON and WANTY, District judges.

WANTY District Judge.

The record now before us is almost identical with the one on which the former judgment in this case was reversed. The facts, so far as necessary, are stated by Judge Day in the opinion of this court reported in 112 F. 885, 50 C.C.A. 576. The evidence on the new trial was substantially the same as on the former trial, the trial judge repeated his former charge to the jury with no material alteration, so far as respects the ground or question on which the former judgment was reversed. Under these circumstances we must inquire whether the Circuit Court followed the instructions of this court in the matter upon which the former judgment was reversed. Under these circumstances we must inquire whether the Circuit Court followed the instructions of this court in the matter upon which the former judgment was reversed, as that decision is the law of the case, binding on this court as well as on the trial court. This rule is stated by the Supreme Court in the case of Roberts v. Cooper, 20 How. 467-481 15 L.Ed. 969:

'But we cannot be compelled, on a second writ of error in the same case, to review our own decision on the first. It has been settled by the decisions of this court that, after a case has been brought here and decided, and a mandate issued to the court below, if a second writ of error is sued out, it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or examined upon the second. To allow a second writ of error or appeal to a court of last resort on the same questions which were open to dispute on the first would lead to endless litigation. In chancery a bill of review is sometimes allowed on petition to the court; but there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate of chances from changes in its members. See Sizer v. Many, 16 How. 98, 14 L.Ed. 861; Corning v. Troy Iron Company, 15 How, 466, 74 L.Ed. 768; Himely v. Rose, 5 Cranch, 313, 3 L.Ed. 111; The Ocean Insurance Company v. Canter, 1 Pet. 511, 7 L.Ed. 242; The Santa Maria, 10 Wheat. 431, 6 L.Ed. 359; Martin v. Hunter, 1 Wheat, 304, 4 L.Ed. 97; and Sibbald et al. v. United States, 12 Pet. 488, 9 L.Ed. 1167.'

See, also, Matthews v. Columbia Nat. Bank, 100 F. 397, 40 C.C.A. 444; Haley v. Kilpatrick, 44 C.C.A. 102, 104 F. 647; Ouray County v. Geer, 47 C.C.A. 450, 108 F. 478; Standard Sewing Mach. Co. v. Leslie (C.C.A.) 118 F. 559; Mutual Life Ins. Co. v. Hill (C.C.A.) 118 F. 711; Olsen v. North Pacific Lumber Co. (C.C.A.) 119 F. 77, and cases cited in those opinions.

Under the pleadings the jury were to determine whether the defendant had entered into a contract with the plaintiff to secure his services in obtaining stock of the Mattingly Company, whereby the defendant was to pay him a commission for the purchase of the stock; and whether, before the time for the purchase had expired, the plaintiff brought the parties together, and the defendant, taking advantage of the plaintiff's efforts, purchased a majority of the stock, and refused to pay the plaintiff for his services. These questions were submitted to the jury under the pleadings. The plaintiff, in the evidence, claimed that he had made a complete verbal bargain with the defendant for a commission of 5 per cent. for the purchase of the stock. This the defendant denied, and testified that he never made a bargain of any kind with the plaintiff for the purchase of the Mattingly Company stock, or any part of it, but that the plaintiff entered into a written agreement with one G. B. Shaw, to the exclusion of the defendant, in the following letter, which appeared in evidence:

'Dear Sir: Confirming our verbal agreement just made, I desire to say that you are authorized to negotiate with the holders of the entire capital stock of the J. G. Mattingly Company upon a basis averaging to the syndicate whom I represent, now taking options on distillery properties in Kentucky, $130 per share-- the capital stock being $300,000. These figures are based upon your assurance that the distillery property is unencumbered; that the corporation owns at least 25,000 barrels of whisky in bond that is unencumbered, and besides has accured storage and other available net cash assets to the amount of $30,000, any shortage to be made up out of the commission to you. It is the purpose of the syndicate whom I represent to secure options on a number of distillery properties in Kentucky, all maturing July 1st, 1899. Whenever a certain proportion of these properties are secured by option, it is their present purpose to close the option and make the purchases; but it is not now known to me what proportion of properties is

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