Appeal from the District Court of the United States for the Western District of Wisconsin; F. A. Geiger, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
ALSCHULER, Circuit Judge.
The action was on a note given to appellant, dated October 25, 1927, for $48,188.28, due in ninety days, signed by Vancouver Lumber Company, Keith, Kirby, and appellee. The suit was against appellee only, who, with Keith and Kirby, owned the corporate maker.
Two defenses were interposed: (a) That the note was given for an advance to be made by appellant under agreement that the note would be delivered only on condition that appellant would purchase certain maturing interest coupons upon a large bond issue of the corporate maker, which had been obtained and marketed through appellant, and that appellant would hold the coupons, when so purchased, as security for the payment of note; but that instead of complying with its agreement to so purchase and hold them, appellant paid the coupons, and they were canceled, thereby depriving the makers of the note of the benefit of the security of the mortgage which had been given to secure the bond issue and the coupons; (b) that some time after the note had matured appellant entered into an agreement with appellee, whereby appellee should undertake to secure a reduction in the price of a tract of Alabama land which appellant was seeking to purchase for a client from one Hatton, the owner, who was holding it at $1,000,000, and, if successful in securing reduction of the owner's price to $800,000, appellant would give appellee $25,000, would limit appellee's liability on the note to one-third, and apply the agreed compensation in its payment, paying appellee the difference. Appellee succeeded in obtaining reduction of the price to $800,000, and so, as he alleges, fulfilled his contract with appellant, notwithstanding the purchase of the property was never consummated.
Appellant denied the alleged condition of its purchasing and holding the matured coupons, and also the alleged agreement to reduce appellee's liability on the note and pay him $25,000 for the service of securing the reduction of price of the Alabama tract; and upon these issues the cause went to trial. Evidence was heard and the jury found for appellee, and judgment was entered on the verdict.
In these issues are involved unmixed questions of fact. Was it in fact agreed between the parties that appellant should not pay and cancel the coupons, but purchase and hold them as security for the note? And did appellant and appellee enter into the alleged subsequent agreement respecting the Alabama tract of land as stated in defense b?
It is the contention for appellant that upon these issues the evidence on behalf of appellee amounted at best to a scintilla, and that appellant's motion for a directed verdict at the close of all the evidence should have been granted. With this contention we do not agree. The evidence on behalf of appellee upon both propositions was positive, and standing by itself, unopposed by contrary evidence, would have supported the verdict.
It is insisted that it is unreasonable to believe that business men would have entered into such agreements, especially b. This may be so. It may not seem reasonable, but it was certainly not impossible. Just how certain appellant felt that the reduction of the price to $800,000 would insure the consummation of the deal whereby it also would have had a profit of at least $25,000, we cannot know.It was just about this time that financial disturbances were manifesting themselves, and it developed that the prospective purchaser of the land could not pay cash for it, as was originally contemplated, but requested time, which the owner was unwilling to grant.
Of course, if appellee's contract was fulfilled by securing the reduction in the price, his right to the agreed compensation was not affected by subsequent business conditions which caused the deal to fall through.It is to be noted that there is no dispute with respect to the agreement between appellant and appellee upon the contract, save only as to the element of whether or not appellee's agreed compensation would become payable only in the event that the sale went through. Appellant insists that this was the agreement, and appellee insists that it was not; an unalloyed issue of fact with the evidence thereon sharply conflicting.
Conceding that the burden of proof on both of the issues was upon appellee, and assuming even that were we the triers of fact we would have concluded that this burden was not sustained as to either issue, this court would not be justified in substituting its judgment for that of the jury and the court, who saw the witnesses and heard the evidence.
Substantial evidence in support of both defenses appearing in the record, we cannot find error in the denial of appellant's motion for a directed verdict in its favor.
Upon denial of appellant's motion for a directed verdict, appellant moved "that the court submit to the jury in separate verdicts the question of the defense upon the merits raised upon the alleged conditional delivery, and the plea in abatement in connection with the Hatton transaction, * * *." The motion was denied, and error is assigned on the ruling.
There is no federal practice requiring juries to make separate findings or to return special verdicts. Indemnity Ins. Co. of North America v. Moses (C.C.A.) 36 F.2d 219; Erie R. Co. v. Downs (C.C.A.) 250 F. 415; City of Milwaukee, Wis. v. Shailer & Schniglau Co., 91 F. 858 (C.C.A. 7). In this respect, the state practice is not binding on the federal courts. United States Mut. Accident Ass'n v. Barry, 131 U.S. 100, 9 S. Ct. 755, 33 L. Ed. 60; Spokane & I.E.R. Co. v. Campbell (C.C.A.) 217 F. 518. While in a proper case the court may make such submission, it is not a matter of right, but is within the court's ...