Walford v. McNeill

• Decision Date: 10 October 1938
• Docket Number: No. 7074.,7074.
• Citation: 100 F.2d 112,69 App. DC 247
• Parties: WALFORD v. McNEILL.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 App. DC 247, 100 F.2d 112 (1938)

WALFORD v. McNEILL.

No. 7074.

United States Court of Appeals for the District of Columbia.

Decided October 10, 1938.

Mark P. Friedlander and Robert I. Silverman, both of Washington, D. C., for appellant.

Kelly Kash and Bradford Ross, both of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and EDGERTON and VINSON, Associate Justices.

VINSON, Associate Justice.

The appellant, a real estate broker, alleged in her declaration filed in the District Court that she entered into a contract with the appellee to make adjustment of, and to seek the collection of sums of money due under various real estate contracts which the appellee held for sales of lots in Montrose, Pennsylvania, and to look after his interests generally as to them, for which he agreed to pay her the sum of $1,500; that she faithfully and fully performed her part of the agreement in every particular and received only $285.18, leaving unpaid on the balance of the contract due her $1,214.82.

The appellee in his plea stated that he never employed appellant in the manner set out in the declaration; that he entered into the contract with the appellant and Miss Mae Helm on behalf of the Montrose Land Company, a corporation, which fact was well known to them in which they were employed to collect and readjust $6,000 or more of suspended contracts then owned by the corporation upon certain real estate sales in Montrose, Pennsylvania, agreeing, on the corporation's behalf, to pay them the sum of 25 per centum upon all monies so collected. A replication was filed denying and joining issue with the averments of the plea.

At the close of appellant's case appellee asked for a directed verdict which was refused. He repeated his request at the close of the whole case which likewise was refused. However, while the jury was deliberating the case, they were recalled by the judge and directed to return a verdict for appellee. This action of the court below is assigned as error, and presents the sole question in this appeal.

It is well-settled that on a motion for a directed verdict, the evidence, together with all inferences fairly deducible therefrom, must be construed most favorably to the plaintiff. It is equally well-settled "Issues that depend on the credibility of witnesses, and the effect or weight of evidence, are to be decided by the jury." Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct. 231, 233, 74 L.Ed. 720. In this case the court also stated: "And in determining a motion of either party for a peremptory instruction, the court assumes that the evidence for the opposing party proves all that it reasonably may be found sufficient to establish, and that from such facts there should be drawn in favor of the latter all the inferences that fairly are deducible from them. Texas & Pacific Ry. Co. v. Cox, 145 U.S. 593, 606, 12 S.Ct. 905, 36 L.Ed. 829; Gardner v. Michigan Central Railroad Co., 150 U.S. 349, 360, 14 S.Ct. 140, 37 L.Ed. 1107; Baltimore & Ohio R. Co. v. Groeger, 266 U.S. 521, 524, 527, 45 S.Ct. 169, 69 L.Ed. 419. Where uncertainty as to the existence of negligence arises from a conflict in the testimony or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury. Richmond & Danville Railroad Co. v. Powers, 149 U.S. 43, 45, 13 S.Ct. 748, 37 L.Ed. 642."

The question for the consideration of the court was whether the evidence submitted was sufficient to authorize the jury in finding in favor of the contract set up by appellant. If the evidence is not sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly. The rule is, "that in every case, before the evidence is left to the jury there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867; Pleasants v. Fant, 22 Wall. 116, 120, 22 L.Ed. 780. See, also, Herbert v. Butler, 97 U.S. 319, 24 L.Ed. 958; Bowditch v. Boston, 101 U.S. 16, 25 L.Ed. 980; Southern Railway Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; Schwartzman v. Lloyd, 65 App.D.C. 216, 82 F.2d 822; Old Dominion Stages v. Connor, 67 App.D.C. 158, 90 F.2d 403; Jackson v. Capital Transit Company, 69 App.D.C. 147, 99 F.2d 380, decided July 25, 1938.

The testimony construed most favorably for appellant was in effect: That the appellee stated he had developed the subdivision of which he was sole owner and had sold many of the lots; that considerable confusion existed with the purchasers because of the death of the agent in immediate charge of the sales and he desired her to straighten the matter out; that he employed her to ascertain and interview persons who had undertaken to purchase the lots and induce them to revive their contracts by making payments thereon, and also to use her efforts to create good will among the purchasers, which would be helpful to the sales campaign of the remaining lots contemplated to be made through a broker at Reading, Pennsylvania; that on May 1, 1933 appellee presented her with a list of purchasers with the amounts claimed to be owing by them aggregating $7,500, together with a power of attorney signed by appellee individually showing her authority to collect the money and adjust these accounts; that she worked from May 1933 to the spring of 1934 interviewing some 200 purchasers and reported fully to the appellee at which latter time he terminated the contract; that she collected the sum of $1,190.18 of which $955 was transmitted to appellee, $235.18 retained by her, which, with $50 received from appellee, made a credit of $285.18 to be applied against the $1,500 agreed upon for her services. Appellant submitted in evidence her letter of May 15th addressed to the appellee individually which contained the following language:

"While I agree with you that there must be a great number of incomplete contracts, a number of which I believe can be collected, I cannot see that there would be enough in it to give me the amount you and Miss Helm told me I would receive, therefore, I am willing to undertake the work of calling on all those for whom contracts can be located or whose names can be learned as having contracted to buy lots, get them to revive their contracts wherever possible, and make collections thereof, for the sum of Fifteen Hundred Dollars ($1500.00). If we find later that it is as good a proposition as you thought, and wish to give the additional $5500, I shall be glad to accept it of course, but it shall not or become a part of our agreement.

"If you wish to accept my offer as contained in the last above paragraph, a letter from you on or before May 20th, 1933, telling me to proceed with the work will be sufficient to constitute a contract between us on the basis of the said $1500."

The appellant likewise submitted in evidence appellee's answer of May 18th, which stated:

"I was greatly interested in your report of your work of last Saturday. It shows what I have always believed, that this Montrose is some-thing that can practically all be collected. It should encourage your client to make me the loan of $2500 so that attention could be given to this matter vigorously at once.

"I am very willing to pay you the $1500 you ask for your work and feel that the figure is perfectly fair. Please begin at once collecting the out-standing items and you may feel free to pay your client the $2500, if he...