Rudy Luther v. Loewi & Co., Inc. And Merrill J. Anderson

549 F.2d 1173, 1977 U.S. App. LEXIS 14620
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 23, 1977
Docket76-1464
StatusPublished
Cited by4 cases

This text of 549 F.2d 1173 (Rudy Luther v. Loewi & Co., Inc. And Merrill J. Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rudy Luther v. Loewi & Co., Inc. And Merrill J. Anderson, 549 F.2d 1173, 1977 U.S. App. LEXIS 14620 (8th Cir. 1977).

Opinions

STEPHENSON, Circuit Judge.

This appeal requires review of Rudy Luther’s claim that Loewi & Co., Inc. and Merrill Anderson committed securities fraud and breach of an investment contract. Luther appeals from the district court’s1 judgment following a non-jury trial in favor of the defense. He contends the trial court’s findings are clearly erroneous and further asserts the court erred in refusing to recognize a binding testimonial admission. We affirm.

Loewi is a brokerage firm with its principal office in Milwaukee and 35 branch offices. From 1965 until 1973 Merrill Anderson was employed by Loewi as a representative in its Minneapolis office. Anderson managed the account of William McKinstry, who wished to liquidate his ownership of National Car Rental Systems, Inc. stock. In connection with that liquidation in 1972, 3500 shares of National Car stock were oversold erroneously by Loewi. In an attempt initiated by Anderson to correct the error and upon a suggestion from McKinstry, Rudy Luther was contacted and asked whether he could deliver the 3500 shares of National Car stock necessary to complete the oversales.

An agreement between Luther and Anderson ensued, but the exact terms of the agreement are in dispute. Luther promised to deliver 3500 shares of National Car stock. According to Luther, Anderson guaranteed that he would credit Luther’s account with the proceeds from the sale of the National Car stock and invest the proceeds in order to achieve a profit for Luther in an amount equivalent to double the difference between the prevailing market value of the 3500 shares and the value at which the oversale orders were executed.2 In Anderson’s view, his obligation to invest the proceeds from Luther’s sale of the National Car stock was limited to one of exercising his “best efforts” rather than an absolute guarantee of a specified sum.

In any event, an account with Loewi was opened in Luther’s behalf, and Anderson invested $16,373.50 credited to Luther’s account in various underwritings and securities. The market value of Luther’s investment rose to approximately $21,000 in June 1972. Luther was apprised of the status of his account through monthly statements received from Loewi. The stock market subsequently declined, however, and [1175]*1175the value of Luther’s account deteriorated to an amount of approximately $4,000.

Luther filed a complaint, stating that Loewi and Anderson had committed violations of the Securities and Exchange Act of 1934, 15 U.S.C. §§ 78a-78hh, and breach of contract. The district court, sitting without a jury, found that Luther was entirely satisfied with the investment of his funds and it was not until after the value of his stock declined that Luther became disenchanted and demanded payment. The trial court further found that, although Anderson may have been unduly optimistic as to expected profits and although Luther may have been naive in agreeing to the proposed plan, the deterioration in Luther’s account was caused by the collapse of the stock market rather than by Anderson’s failure to perform satisfactorily. The' trial court concluded that there was no evidence of fraud, misrepresentation, poor business judgment or lack of good faith on the part of Anderson. The court stated “the evidence fully warrants a finding that as a stock broker Anderson exercised a high degree of care in procuring the best possible stock investments for the Luther account and that is all he agreed to do when the deal was made with Luther.” Moreover, the court found that, although Loewi’s central office was responsible to some extent for Anderson’s failure to obtain desirable stocks for Luther’s account, there was insufficient evidence that Loewi’s main office was a direct cause of Anderson’s inability to produce profitable investments for Luther. The court ordered payment to Luther of the remaining balance of his account but denied any further relief.

This is essentially a breach of contract case3 concerning the scope of the Luther-Anderson investment agreement and the extent of its performance. Appellant contends Anderson made certain testimonial admissions that precluded the district court’s determination that Anderson and Loewi did not breach the contract. For example, on cross-examination Anderson described his proposal to Luther as follows:

I said we needed delivery of 3,500 shares of National Car Rental stock and that if he would deliver the 3,500 shares to us we would utilize the proceeds from National Car Rental to purchase attractive underwritings which would result at some time in the near future in double the difference between the stock price it was sold and the current prevailing bid price which was approximately one point.

Appellant also focuses upon the following colloquy from Anderson’s direct examination:

Q. In April, 1973 when you were leaving Loewi & Co., did you feel the Loewi Company and yourself as part of the Loewi Company in the relationship with Mr. Luther on this account, had let him down in any way? A. Sure, Mr. Luther had been let down. There was no question about it.

When a party’s own testimony, if true, would defeat his right to a verdict, and such statement is not modified or explained, a verdict should be directed against him. See Brown v. Poland, 325 F.2d 984, 986 (10th Cir. 1963); Bolam v. Louisville & Nashville R.R. Co., 295 F.2d 809, 811-12 (6th Cir. 1961); Barnett v. Terminal R.R. Aes’n, 228 F.2d 756, 761 (8th Cir.), cert. denied, 351 U.S. 953, 76 S.Ct. 850, 100 L.Ed. 1476 (1956). Nevertheless, Anderson’s statements cannot be characterized as binding admissions in light of other aspects of his testimony providing modification and explanation. At numerous points in his testimony, Anderson stated that he promised Luther only his best efforts, that he utilized his best efforts to invest for Luther’s benefit and that he did not guarantee Luther [1176]*1176any premium. Anderson testified in the following manner:

Q. But you are testifying, are you not, that you didn’t guarantee him any particular premium in any amount. All you said was that you were going to try. Isn’t that what your statement is? A. “Guarantee” is a word that is foreign to my vocabulary after being in the business for 16 years or 17 years.
Q. Did you have any discussion with Mr. Luther, assuming this conversation with him took place on February 8, that it was a good deal for him to deliver the stock to you at a price of $16,375 rather than sell it on the market for $21,000.
A. The gist of the conversation was with Mr. Luther that we were going to use our best efforts and we were going to utilize the proceeds of the sale of the National Car Rental at the price of $16,-375 to acquire attractive securities including underwritings which would net him a profit of two to one, or double the profit between the figure of $16,375 and $20,-125.

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549 F.2d 1173, 1977 U.S. App. LEXIS 14620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rudy-luther-v-loewi-co-inc-and-merrill-j-anderson-ca8-1977.