Stricker v. Morgan

• Decision Date: 30 September 1959
• Docket Number: No. 17570.,17570.
• Citation: 268 F.2d 882
• Parties: R. M. STRICKER, Appellant, v. J. P. MORGAN et al. (Mrs. Margaret Koehler Morgan, Edward C. Morgan and Evelyn Morgan Wiemer, substituted as appellees in the place and stead of J. P. Morgan, deceased), Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

268 F.2d 882 (1959)

R. M. STRICKER, Appellant, v. J. P. MORGAN et al. (Mrs. Margaret Koehler Morgan, Edward C. Morgan and Evelyn Morgan Wiemer, substituted as appellees in the place and stead of J. P. Morgan, deceased), Appellees.

No. 17570.

United States Court of Appeals Fifth Circuit.

August 6, 1959.

Rehearing Denied September 30, 1959.

Gerard H. Brandon, Natchez, Miss., Edwin Leland Richardson, Baton Rouge, La., Clay B. Tucker, Woodville, Miss., Gerald N. Sims, Vidalia, La., Dale Richardson & Dale, Baton Rouge and Vidalia, La., Brandon, Brandon, Hornsby & Handy, Natchez, Miss., for appellant.

C. Delbert Hosemann, Vicksburg, Miss., Edmund L. Brunini, Jackson, Miss., William H. Talbot, New Orleans, La., Brunini, Everett, Grantham & Quin, Vicksburg, Miss., for appellees.

Before TUTTLE, CAMERON and WISDOM, Circuit Judges.

CAMERON, Circuit Judge.

This appeal presents the question whether the court below, sitting without jury, was clearly erroneous in holding that plaintiff-appellant R. M. Stricker had not sustained the burden of proving that he was entitled to a decree against defendant-appellee J. P. Morgan,¹ confirming in plaintiff title to an undivided one-half interest in Esperanza Plantation in Concordia Parish, Louisiana, and ordering an accounting for oil rentals and royalties and other income derived from said plantation. Plaintiff charged that he was entitled to said relief under the claim that there was a profit and loss sharing agreement between him and defendant making them partners or joint venturers with respect to said plantation, or creating as to it a constructive or resulting trust in said land as between him and defendant. This relationship, by whatever name called, was, under the plaintiff's claim, created by a course of dealings beginning in 1935 and continuing through the time when title to said plantation was vested by deed in the defendant.² Defendant denied the existence of such a general agreement, claiming that each of the several deals between them rested entirely "on its own bottom."

Plaintiff asserts that the contract between him and defendant was a Mississippi contract controlled by its laws, but argues that he is entitled to the same relief even if the laws of Louisiana are applied. Defendant stands on the argument that plaintiff is not entitled to any relief, because his relationship with plaintiff was governed by Louisiana law, which barred plaintiff's recovery because the contract was not in writing. Another sharply contested point of law related to whether the court below correctly declined to permit plaintiff to testify under the Mississippi "Dead Man's Statute."³

In an exhaustive, well written and documented opinion the district judge decided all of the issues in favor of defendant and against plaintiff, and reference is made to his opinion in the case of Stricker v. Morgan, D.C., 158 F.Supp. 830.⁴ The facts are fully and fairly stated in said opinion and no good purpose would be served by repeating them here. A reading of the briefs and this voluminous record fails to convince us that the court below was clearly erroneous in its findings of fact, which are thus summarized on the last page of the opinion (at page 842):

"There were no written or oral articles of partnership agreement between plaintiff and defendant as concerns the operation of Esperanza Plantation nor did such agreement arise from a course of dealings between the parties. Plaintiff knew and understood that he had no interest in Esperanza Plantation beyond a participation in the profits from the sale of the timber.

"In all his dealings with defendant plaintiff conducted himself as a broker or middleman and accepted a commission or bonus from others in negotiating sales or oil and gas leases for other parties or property in which defendant had an interest with plaintiff. * * *

"Plaintiff knew and understood from the date of the purchase of the Esperanza Plantation that he had no interest in the land beyond a share in the profits from the sale of the timber. * * *

"Defendant has had the record title and has been in full, open possession of the Esperanza Plantation since December 30, 1940 and has exercised all incidents of ownership in connection with the Esperanza land from that date.

"The plaintiff having failed to meet the burden or proof and show by a preponderance of the evidence that he is entitled to recover, the complaint will be dismissed at the cost of plaintiff."

These facts as found by the court would require a judgment for the defendant whether the rights of the parties were governed by Mississippi law or by Louisiana law. Even if we accept that the general course of dealings between the parties gave rise to a series of "deals" amounting to partnerships, joint ventures or trusts, resulting or constructive, justifying the application of the liberal rules plaintiff conceives to be followed by the Mississippi courts,⁵ plaintiff would still proceed throughout under the burden of establishing the terms of the particular contract between him and the defendant with respect to the Esperanza Plantation. Plaintiff concedes, as he must and as is illustrated by the quotation from his brief, footnote 2 supra, that every transaction between him and defendant was different from every other transaction. That is exactly what the court below declared:⁶ "The fair inference from all of this testimony is that each transaction was separate and distinct within itself, and was based upon an understanding between Stricker and Morgan, and if third parties were included, on the understanding with them, and contracted only as to that particular transaction."

Plaintiff discusses eleven transactions between the two in addition to the Esperanza deal and, in some of them, plaintiff was interested in the timber alone, not in the land, and in others, neither of them acquired any interest in the land. The ultimate question for decision by the court below, therefore, was whether in the Esperanza transaction plaintiff acquired an interest in the land or an interest in the timber only. The trial court had before it testimony of witnesses who were present when the Esperanza agreement was discussed and was closed and, in addition, it heard much evidence, record and otherwise, of circumstances throwing light upon the parties' dealings; and it heard and considered a number of admissions against interest by both parties along with statements and actions constituting construction by the parties of the arrangement between them. From all of this evidence the court reached the definite conclusion that the Esperanza deal was separate from all the others, that the timber was purchased with funds of Louisiana Box and Lumber Company⁷ and was held by defendant for the joint benefit of plaintiff and said company, that the land was purchased by defendant, and that plaintiff acquired no interest therein; and that the oil, gas and mineral rights, being a part of the estate in the land itself, were the property of the defendant free from any claim of the plaintiff.

The conclusions reached by the court below were required by law if the facts found by it were supported by the evidence; so that the fundamental question before us remains throughout whether its findings of fact were clearly erroneous. As heretofore stated, we think that its findings were supported by credible evidence. The factual situation with which it dealt was quite involved and the court set forth its findings clearly and in detail in its published opinion. Being convinced from a careful examination of the record and the exhibits that the findings were justified, we decline to set them aside under the clearly erroneous rule.⁸

Plaintiff urges that it was error for the court below to deny him the right to testify upon objection by defendant that his testimony was inadmissible under § 1690 of the Mississippi Code of 1942, commonly known as the "Dead Man's Statute;"⁹ and that his testimony would have influenced the court to find the facts in his favor. When plaintiff was offered as a witness defendant objected, invoking the protection of the statute; and extensive proceedings were had before the court below made its ruling. These included a comprehensive stipulation dictated by the attorneys into the record, by which plaintiff attempted to establish that defendant had waived the right to rely upon the Mississippi Statute by taking plaintiff's deposition and utilizing the information developed therefrom in preparation for the trial and in developing his proof.¹⁰ Plaintiff also dictated into the record a showing of what Stricker would testify if placed on the stand,¹¹ and also introduced in evidence the discovery deposition which had been taken and filed by defendant, but not offered in evidence by him.

The court below, as stated, sustained the objection to the competency of Stricker as a witness, basing its ruling chiefly (D.C., 158 F.Supp. 837) upon the Mississippi case of Veazey v. Turnipseed, 219 Miss. 559, 69 So.2d 379, 383. A reading of that case will demonstrate the correctness of the trial judge's estimate of it.¹²

Plaintiff relies upon four Mississippi cases,¹³ but we do not find any of the cases at war with the holdings of Veazey, supra, and they do not, in our opinion support plaintiff's position. Plaintiff also cites three cases by federal courts, chief reliance being placed upon Mutual Life Insurance Co. v. Green, D.C.Ky., 1941, 37 F.Supp. 949. A reading of that case shows that the United States District Judge ruled that the incompetency of a witness was waived by the taking prior to the trial, and filing during the course of the trial, of the deposition of the person claimed to be an incompetent witness. The court discussed a large number of decisions of the state courts of Kentucky, and concluded that they were in conflict. The ruling was based entirely upon state court decisions concerning the Kentucky Statute. That was, of course, in obedience to Rule 43(a...