Dudley v. Sears

16 F. 335

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: July 1, 1883
• Status: Published

Opinion

Coxe, J.

The defendants move for a new trial upon the sole ground that the court erred in refusing to charge the following proposition :

“ That, it being admitted that the plaintiffs gave Messrs. Thurber a half interest in the contract in question, the plaintiffs, in no aspect of the case, should recover more than one-half the difference between the contract price and the market price at Circleville on September 7,1880.”

In other words, tho court was asked to instruct the jury, as matter of law, that the plaintiffs could recover but half the damages demanded in the complaint, for the reason that the proof established an actual subsisting assignment to the Messrs. Thurber; and further, that the plaintiffs admitted this to be so. I cannot regard the refusal as error.

First. The evidence'falls far short of establishing the proposition as stated. A^ construction can be put upon the testimony proving an agreement to make a contract, rather than the contract itself.

Second. The court would hardly have been warranted in instructing the jury that the defendants’, version of the transaction with Messrs. Tkurber was admitted, by the plaintiffs, in view of the fact that no such admission was made on the trial, and the only witness connected with .the Thurbers who spoke on the subject — Mr. Wiley — who, from his position, would be likely to know if such an arrangement had been actually consummated — disclaimed all knowledge on the subject.

Third. But assuming that the request states correctly the proof,' and the plaintiffs’ position in regard to it, does the legal conclusion necessarily follow? The proposition stated, viz., “that the plaintiffs gave Messrs. Thurber a half interest in the contract,” is not comprehensive enough to sustain the ruling requested. The legal effect of the agreement would depend almost entirely upon its terms. An absolute, existing assignment of a half interest in the contract would present one question- a parol agreement for a resale of half the corn, quite a different one. The statement last quoted might have been true and either of these hypotheses correct; indeed, it might have been true had the negotiations terminated far short of a valid, binding contract, of been mutually abandoned shortly after the conversation in July."

In any view of the case I am of the opinion that the plaintiffs are entitled to recover the full amount. The legal title is in them, and payment of the judgment entered herein must discharge the defendants from every obligation under the contract.

The motion is denied.,