Wear v. Imperial Window Glass Co.

• Decision Date: 21 May 1915
• Docket Number: 4316.
• Parties: WEAR v. IMPERIAL WINDOW GLASS CO.
• Court: U.S. Court of Appeals — Eighth Circuit

224 F. 60

WEAR v. IMPERIAL WINDOW GLASS CO.

No. 4316.

United States Court of Appeals, Eighth Circuit.

May 21, 1915

Syllabus by the Court.

When an action at law is tried without a jury by a federal court, and it makes a general or a special finding of facts, the act of Congress forbids a reversal by the appellate court of that finding, or of the judgment based thereon, 'for any error of fact' (Rev. St. Sec. 1011 (U. S. Comp. St. 1913, Sec 1672, p. m00)), and a finding of fact contrary to the weight of the evidence is an error of fact.

The question of law whether or not there was any substantial evidence to sustain such a finding is reviewable, as in a trial by jury, only when a request or a motion is made denied, and excepted to, or some other like action is taken which fairly presents that question to the trial court and secures its ruling thereon before the close of the trial.

An exception to any ruling which counsel desire to review, which sharply calls the attention of the trial court to the specific error alleged, is indispensable to a review of such a ruling.

The plaintiff below, the Imperial Window Glass Company, a corporation of the state of West Virginia, sued F. E. Wear, a citizen and resident of the state of Missouri, for a balance of $4,037.77 due it on account of the sale and delivery to him of window glass, office furniture, and fixtures. The defendant answered that the plaintiff had failed to comply with certain provisions of the statutes of Missouri relative to foreign corporations doing business in the state of Missouri, and that the plaintiff, at the time it sold and delivered to the defendant the property for which the action was brought, was violating the anti-trust statutes of the United States and of the states of West Virginia and Missouri, and that the property was sold and delivered to him in furtherance of the violation thereof. The defendant further answered that the plaintiff was indebted to him in the sum of about $18,000 on a contract between them for commissions which he had earned selling window glass pursuant to the contract, and prayed for judgment in his favor upon this counterclaim. The plaintiff replied, first, that it never complied with the laws of Missouri mentioned in the answer, but that it was engaged solely in conducting interstate business, that it had an office in Missouri in furtherance of that business and for no other purpose, and that it was not amenable to the laws of Missouri governing the rights of foreign corporations doing business in that state; second, that, although the plaintiff may have been at certain times engaged in business in violation of the anti-trust laws cited in the complaint, the sales of property for payment of which this action was brought were not in any manner connected with or made in furtherance thereof, but were wholly collateral thereto, and were not in violation of any of these laws; and, third, that the plaintiff never made any contract to pay the defendant the commissions which he demands in his counterclaim, and, if it did, that contract grew out of and was based upon an unlawful agreement and combination in violation of the anti-trust laws.

The case was tried by the court without a jury. At the close of the evidence Mr. Stanford, one of the attorneys for the plaintiff, said: 'If your honor please, there is just one thing we ask: That your honor make findings of fact and conclusions of law. ' The court replied: 'Of course I can indicate now what I find, and I suppose, in order to protect the interest of the parties, it may be understood that the entry will be withheld, until such findings, in accordance with the findings of the court, may be prepared. But I think it probably better that I indicate, in a general way, what my findings are. It may be that I will overlook some matters, but I will state them, in a general way, for the guidance of counsel. ' The court then proceeded to state orally some of the findings it intended to make. It then said: 'I do not know but there may be some other matters that will be found necessary and proper to incorporate in the findings, and I make these, not formally, but as an indication to counsel what my findings are. I further find that the amount due under the petition is the amount prayed for therein and itemized as by agreement of parties, using that term advisedly, although, of course, it is not agreed by the parties that any amount is due, in the sense of being recoverable. I do not think of anything else. Has counsel any suggestions to make further as to any material matter that should be found by the court? If not, it may be suggested by suggestions from counsel in support of the findings. ' Thereupon a discussion followed about the date of a certain plea an account of which occupies a page of the printed transcript, and the court then overruled the demurrer to the evidence of the plaintiff, which had been interposed at the close of the plaintiff's evidence, and which the court had held under consideration while the defendant was introducing his evidence, and then made remarks on the law and the facts of the case which occupy a page of the printed transcript. At the close of these remarks the following colloquy occurred between the court and counsel for the defendant:

'Mr. Cooper: Do we understand there will be formal findings of fact and conclusions of law filed?

'The Court: If it is desired, that can be done. If this is desired, and you can get together as to what they should be, as evidencing your various theories, I will O.K. them; otherwise, I shall have to see which of them I shall accept.

'Mr. Neel: For the benefit of the record, we want it to show that we save our exceptions to the remarks, and any conclusions the court may make.

'The Court: I have made these remarks informally, and in that case let the transcript of what I have said be made and submitted to me, and I

...