Charles H. McArthur Plaintiff-Appellee-Appellant v. John H. Rumbaugh, and Jules G. Evens, Defendant-Appellant-Appellee

Second Circuit

Charles H. McArthur Plaintiff-Appellee-Appellant v. John H. Rumbaugh, and Jules G. Evens, Defendant-Appellant-Appellee

310 F.2d 376, 1962 U.S. App. LEXIS 3604

CourtCourt of Appeals for the Second Circuit

DecidedNovember 16, 1962

Docket72, Docket 27526

StatusPublished

This text of 310 F.2d 376 (Charles H. McArthur Plaintiff-Appellee-Appellant v. John H. Rumbaugh, and Jules G. Evens, Defendant-Appellant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Charles H. McArthur Plaintiff-Appellee-Appellant v. John H. Rumbaugh, and Jules G. Evens, Defendant-Appellant-Appellee, 310 F.2d 376, 1962 U.S. App. LEXIS 3604 (2d Cir. 1962).

Pincite

Opinion

PER CURIAM.

Defendant Jules G. Evens appeals from a judgment holding him liable to plaintiff for half of the amount he received as commission for effecting the .sale of an advertising agency, National Transitads, Inc. The district court found .a joint venture between plaintiff and defendant Evens. Plaintiff had pleaded, .and attempted to prove, a three-way joint venture (with the other defendant, Rumbaugh, included), which would have given him roughly one-third of the total commission, rather than only half of Evens’ 'half. Evens contends it was error for the court below to find and give judgment for a two-way joint venture. This is a frivolously technical claim. Plaintiff, having amply proved the two-way .agreement, tried to show its expansion into a three-way agreement. His failure in this latter attempt should not preclude recovery on what he did prove. Judge Blumenfeld’s findings regarding the transactions involved in this case, as set forth in his reasoned memorandum of decision, are far from being “clearly erroneous” and must stand. Federal Rules of Civil Procedure, rule 52(a). Further the judge was obviously justified in concluding from the record of the pretrial hearings and the trial itself that Evens had full and fair notice of plaintiff’s claims. And since this issue was so •clearly encompassed within the testimony presented, the judgment necessarily followed in any event under F.R.Civ.P. 54 •(e).

Plaintiff appeals from the court’s refusal to give judgment against Rum-baugh; but this, too, was foreclosed by the court’s findings.

Affirmed.

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PER CURIAM.

Defendant Jules G. Evens appeals from a judgment holding him liable to plaintiff for half of the amount he received as commission for effecting the .sale of an advertising agency, National Transitads, Inc. The district court found .a joint venture between plaintiff and defendant Evens. Plaintiff had pleaded, .and attempted to prove, a three-way joint venture (with the other defendant, Rumbaugh, included), which would have given him roughly one-third of the total commission, rather than only half of Evens’ 'half. Evens contends it was error for the court below to find and give judgment for a two-way joint venture. This is a frivolously technical claim. Plaintiff, having amply proved the two-way .agreement, tried to show its expansion into a three-way agreement. His failure in this latter attempt should not preclude recovery on what he did prove. Judge Blumenfeld’s findings regarding the transactions involved in this case, as set forth in his reasoned memorandum of decision, are far from being “clearly erroneous” and must stand. Federal Rules of Civil Procedure, rule 52(a). Further the judge was obviously justified in concluding from the record of the pretrial hearings and the trial itself that Evens had full and fair notice of plaintiff’s claims. And since this issue was so •clearly encompassed within the testimony presented, the judgment necessarily followed in any event under F.R.Civ.P. 54 •(e).

Plaintiff appeals from the court’s refusal to give judgment against Rum-baugh; but this, too, was foreclosed by the court’s findings.

Affirmed.

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Bluebook (online)

310 F.2d 376, 1962 U.S. App. LEXIS 3604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-h-mcarthur-plaintiff-appellee-appellant-v-john-h-rumbaugh-and-ca2-1962.