American Cyanamid Co. v. Wilson & Toomer Fertilizer Co.

Acts Revenue capital gain provisions of the on the event of default “In the the of 192Í and 1924. any one of Buyer making payment of same interest when the said installments and ease For reasons stated payment due, and in ease such shall become Reve- Dahlinger of Internal Commissioner days thirty of such made after notice is not find (C. F.(2d) we nue Trus- Buyer, the the Trustee to the default Ap- Board of Tax decision of error in the at the empowered tee is then to sell this stock accordingly affirmed. peals, which highest order market obtainable in satisfy unpaid the total balance the Sell- due er, amount received in excess unpaid said balance shall be returned Buyer. Buyer dividends, in- “The entitled v. WILSON CO. CYANAMID AMERICAN may cluding dividends, hereafter stock CO. FERTILIZER TOOMER payable stock. become on this 5919. No. be entitled reason- “The Trustee shall compensation for services rendered able Appeals, Fifth Circuit. Court Circuit hereby and the execution of the Trust created July 21, 1931. Buyer agrees pay one- Seller and each compensation, as well as one-half half of such reasonably by the expenses incurred Trustee hereunder. Bank, National as Trus- “The Seaboard hereby tee, accepts Trust the trusts in this Agreement agrees and declared and created perform con- same the terms and ditions hereinabove forth.” set petitioner profits contends set out in his return taxable income were erroneously assessed Commissioner rates, they

normal and surtax whereas gain been taxable assessed as from capital sale of assets consummated after De- provisions cember 31,1921, sec- under (a) (1) tion 208 of 1921 of the Revenue Act (42 232) Stat. section 208 (a) (1) note). Revenue Act of (26 USCA 939 § The Board Appeals of Tax found: “This ac- contract was carried out in cordance petitioner its terms. years owned the stock sold for more than two- prior to November petitioner profit reported “The on the $19,849.88 above-mentioned in each sale years 1922 1925, inclusive, com- puted the tax per thereon at the rate of 12% cent.; the Commissioner included these in- year stallments with other income each taxed the whole at the normal and surtax rates, thereby determining the deficiencies. The sale of the petitioner’s stock in the Cen- tral Pocahontas Company Coal was not 31,1921.” summated after December The Board decided that the sale of the petitioner’s stock in the Central PocaRontas Company Coal was consummated before and 31, 1921, after December and that profits therefrom were not under the taxable dissenting.

FOSTER, Judge, Circuit Davis, City, John W. of New York Staf Jacksonville, Caldwell, Fla., ford ap City, Charles Caldwell, of New York pellant. Bedell, Milam and A. George Robt. R. Fla., Jacksonville, and E. T. Milam, Y. all appellee. Miami, Fla., for McIlvaine, of FOSTER, SIBLEY, Before Judges. HUTCHESON, Circuit

SIBLEY, Judge. Circuit Wilson & Toomer Fertilizer Company,

ferred to hereafter as sued Ameri- plaintiff, Cyanamid Company, can referred to as de- fendant, overcharges at law recover years delivered the several long-time inclusive, under a purchase tract for its had Amalgamated Phosphate made with Compa- ny in 1911 and modified in 1912. The suit counts; in four being the third a com- money mon had count received. first, which, special second, and fourth were counts up set the terms of acquired the defendant had capital stock of equipment, and leased its mines and and had plain- thereupon adopted the contract with consent, tiff’s or else so conducted itself estop reference as to it from thereto de- in law nying adoption, and to there- amount use in the business to, but continued to 6G7 phosphate company portions name of the which was relat- parts that “all thereof alleged arising conceal the out of dominated in order to causes of advantages purported enjoy between transactions incurring in a August contract without its burdens oc- defendant before 22nd, special particular, pro- wit, curred, years a that three before all, clause if at more than year plaintiff each have face vided that the should On their the institution of this suit.” any price pleas of con- profess the benefit lower than the to answer the these do not per seller $2.80 tract of ton which the demurrable for counts, whole and not are might year in insufficiency. on sales followed wake such this In such at common by delivery law, A was directed only plea others. verdict where in could be one bar for plaintiff against filed, plaintiff for the the defendant but took could not demur de- $60,000, appeal judgment over and portion taken nil of as to the dieit fendant. answered, replied the count and plea as to Plead- remainder. Steven on question The face is effect of first we ing, 216. than one Florida, In more where ap upon of a former decision this court plea filed, plea in bar which an- may be a peal. 33 F.(2d) a 812. There was reversal only part swers of count a divisible court, general a for divided with a remand permissible part, although as to that other with, proceedings further inconsistent pleas prevent judgment as to the remainder a majority opinion. We have there here, they disposed of of. until are count fore, enforcing specific a man question 89, Hollis, Hartford v. 64 Fla. Fire Ins. Co. majori ruling date. The one discussed Putnal, 785; Cosmopolitan 59 Ins. Co. v. So. ty opinion be was the direction the court lapse 41, 60 Fla. 53 So. Whether the 444. low a verdict in favor of the defendant years any part three bar of the counts does plaintiff's evidence. at the conclusion of the upon depends causes declared of action general a After consideration the law Florida, Compiled on. The General laws of majori gone, far so evidence as it 4663, provide limitation of 1927, § Laws upon ty plaintiff's decision evi was that twenty years upon any “an for action unexplained” dence “uncontradicted upon obligation, liability or founded tract, wrong. dissenting directed The verdict writing seal,” and an instrument of under five also judge thought ruled otherwise. years upon if “founded instrument defense, that the statute of frauds was not writing seal,” years under for fully performed three because the “upon dispute. fraud, an action or contract in No other side liability rulings contract, The obligation distinct were made. evidence not founded or offered, the defendant has now been writing.” upon an instrument of The third puts on matters dis money a different face several received, is for had and and ex- count opinion cussed the former and rebuts some partic- contract, but a biff of hibits no opinion under such others. The former overcharges “For ulars rock” adjudication necessarily an mandate is not at stated dates for stated amounts. questions any save those terms decided. Claiming on its face no written contract for Paving Re Wolff Co. Court Industrial v. three-year foundation, ap- limitation 441, L. lations, 69 267 pears applicable count, be to this Hill, Ins. v. 193 Mutual Life plea applying it should not have been 538, 48 Ed. 551, 24 S. L. We U. 4 Counts are also for stricken. present evidence we are at think under overcharges rock, or rebates liberty the faets and the entire to re-examine plead contracts and but exhibit written applicable law to them. promise express therein that aof lower than the benefit pleas new trial limitation At upon specified certain contin- count, defendant to each were offered happened. gencies claimed to have which are filed, but to be which were allowed founded on these contracts. counts grounds These motion stricken on sign defendant did not the con- It is true was offered as bar the count but did each 1 is claimed in count “as- tracts, but that it count and not answer the entire that neither intentionally made it its thus good or in sumed” plea answer whole was a contract, and count that defendant it was own to the count to which The addressed. manifesting plaintiff certain letters wrote ground untenable. counts former it; adopt counts sought recovery purpose to due for for rebates of the defendant had conduct certain 1920, 1921,1922, and 1923. The suit was be effect, so or intended August 22,1924. plea whether gun to each count this not. require consequence the in Florida statute does not of which defendant came di rectly signed the defendant. legal privity written eontraet into with the ways became This theory defendant in of these also the of the second and writing, bound whether by the fourth terms eounts. fourth count also ex up not, is founded under seal the action hibits a lease between defendant and the writing meaning on the within but the lease contains accordingly. promise Florida and is limited from phos statute, the defendant to the phate Hannah, Brownson 111 So. v. 93 Fla. assume but promise by 51 A. L. R. 976. a like oth rather a effeet To the defendant Kytle Kytle, er states are v. 128 Ga. to furnish it with the Co, Atlanta, E. & N. R. R. Mc performing K. means of the contract for itself. A. 929, 6 L. R. Kinney, theory 124 53 S. E. The Ga. of the second and fourth counts 215; v. (N. S.) Rep. Gilles 436, 110 St. Am. we understand that, if did to W. (Tex. App.) Miners’ 198 S. purposely Bank Civ. not adopt own, contract' as its the 170; Co., Schmidt R. 139 R. deny v. Louisville was such estop conduct as to it to Saenger Ky. 332; 81, 129 W. Houston such adoption, and to amount law there 376, Dunn, App. 41 92 S. bund v. Tex. Civ. jurisdictions to. been many has held in 104, Sibert, 429;W. 18 Kan. plaintiff equity Schmucker v. would have to enter to Rep. count which 26 Am. 765. The fourth promise dbtain of a enforcement from de September carry was allowed as an amendment on -phosphate company fendant to the to exhibiting along 4, 1926, though with the Ashford, out the latter’s Keller v. eontraet. 667; claimed be writ 610, 494, the two letters to 133 U. 10 33 Ed. S. Ct. L. thereby by ten introduce Wood, 309, Willard 10 S. Ct. defendant, v. a new so as to fix its allow 831, ; cause 34 L. Ed. 210 Second National Bank v. measuring Lodge, as a new its limita ance date for Grand 98 25 L. Ed. 75. U. S. express adopted letters no reference contract, tion. The make But if defendant tak the contract, promise no company to and contain to place phosphate the it They price. plaintiff’s consent, rebate or reduce the with was a virtual there count, fourth but at most entering foundation of the novation and no to equity need for admissions, authorized, which resulting obligation. or enforce are acts Taenzer v. facts, 240; might tend, along Chicago (C. other to R. R. C. 170 Co. F. by Chicago adoption Chicago the eontraet defend R. show Alton R. Co. Coal v. reject Co., 121; count ant. We the contention that Swift & Co. Detroit Rock Ill. v. by Estoppel expres (C. A.) fraud is or other tort. Salt F. 231. Ajfew might indicate, gravamen deny sions but the conduct has been so to such Ferry promise Wiggins eontraet, applied equitable the counts is the as suits. 396, 12 our was held in first sentence of former Co. v. Ohio R. R. opinion.' three-year But law courts also en limitation has no L. Ed. 1055. equitable estoppel. Kirk v. application counts and 4. force to so-called Hamilton, 26 L. Taen motion to transfer the case to the Chicago Co., supra. zer From this R. R. equity properly We docket overruled. it follows construction of the counts also think cause of action forth was nec no set mixing tort, and nor is no of contract there essarily exceptions equitable. some With legal equitable action, and causes and jurisdiction plaintiff concurrent where refusing compel consequently error in to no may forum, make his is choice ease counts, an election or to strike between the remedy equitable sought when some portions of out them. equity give, alone can which some equity recognize. up alone will No traversed,, set which specifically The counts were money prayed, save a judg relief here pleaded and additional facts were show legal money 3 is ment. action for contract, Count real relation to the defendant’s alleges Count while it adopt received. that there was no intent plaintiff’s Upon adoption. defendant “assumed” the necessary inference Amalgamated Phosphate proven pleadings eontraet Com thus settled it was up any promise pany, by Amalga- set does not from the was made trial that the contract phosphate performed company Company, defendant to the do Phosphate mated seeking plaintiff enforce, by August, 1916, the entire so-which when until capital defendant with came to bo- but rather that ac of that stock During quiescence adopt by took over and that fall the consent defendant. owned minutes,, thereby effecting novation, defendant, ed its directors’ shown as possession. deliveries rock directly operate “desiring own or to more name of were billed to Company,” Phosphate properties of the paid for the situa- appointed to consider a committee phos- payable to and collected own, cheeks As result it was decided tion. adjusted phate company. Prices were December operate, and on but to prices at before reduction the lowest from the much-discussed lease made phosphate company had delivered which demising to defendant year; payment of equipment others each their phosphate mines and phosphate company’s being bate made thirty years within term of or until money of lessor check. Much period should he exhausted. the mines lessee, note used some borrowed on oper- (1) to defendant as lessee bound itself account, accurate rec- open and some on hut annually as rent mines; (2) pay ate the kept on the ords of transactions were per equal lessor an amount cent, high companies. In books both outstanding $1,400,000of interest attended operation cost of suc- insurance, taxes, bonds, wit, $70,000, having rendered World War roy- ceeded expenses, lessor’s administration company’s long-time contracts per out, alty taken of 10 cents on rock ton very burdensome, efforts were prices low sinking fund year to be less than who held get and others made to by its payment be made lessor under due to adjustment, make some similar to contracts royalty $40,- mortgage. ran from bond This exeept plain- with all which were successful per (3) $100,000 year; to deliver 000 to to practically was price tiff. The phosphate all at mines lessor on cars & long-time Armour by contracts with fixed by fulfill outstand- rock needed lessor to its prices per $1.80 at as low as Co. and others contracts, plaintiff, at including of cent, They not alone unremunera- were thus ton. cost, of ascertained price per 15 over themselves, but lowered tive in agreed basis; on an (4) install additional low-price contracts These plaintiff. equipment necessary produce phos- being procured substi- some be canceled, above, put phate promised leave defend- contracts direct with tuted new equipment; (5) in still other to maintain the plaintiff’s ant, prices lower than still at hut good properties in condition and deliver lessor, $2.80. of As the contract them back such condition at end of longer making phosphate company, was no lease, right lessor to its end have the at sales, assumed that no low-price these purchase any equipment or all added plaintiff, was and none there- bate due to was lessee valuations at in an arrived dif- is to recover the after This suit made. agreed lessor have way, to re- plaintiff’s price and contract between ference purchased; move (6) them if not so to main- by the defendant lowest sales executed tain reasonable fire insurance. The lessor on contracts. substituted under these part its covenanted pay principal and interest of they the bonds and as taxes ma- apparently considered tured, and to make no further liens .the parties court below that the lease between property. companies The two had now were, and corporations car related as these officers, they same and executed the lease for was, and ried out this one with the results The each. lease once put was at into effect. disregarded, necessarily reached, was to be equipment of to value additional about and entire transactions to be attributed $500,000 added, promised payments dominating actor in defendant as the made, promised phosphate and the rock de- them, leaving possible no conclusion but that livered company lessee. lessor adopted plaintiff’s defendant con had no business, other active corpo- but its terms, tract, had its and was liable. violated organization rate kept up, sep- its and Accordingly documentary evidence, much treasury arate books and though maintained, oral, and was excluded which was offered to by persons who also served the defendant. show the circumstances which attended the recorded, The lease was not operating but in making the ac placed the mines the sign defendant its on quisition by defendant the stock of the premises equipment marked the with phosphate company, and the financial condi name; its stationery its own was used for its company tion of the at the time business and a stationery different for that of the time lease and at the of the substitu lessor, defendant wise con- low-price contracts, pur tions for the and the cealed fact that was in possession, poses parties of the transactions, these made no misstatement as to the nature of necessity its them avoid the failure 670 Nearly corporation hundred one contracts with a must company. who rulings. performance. We see look to it The own alone exceptions to these relate touching ership by of the relevancy defendant of the stock of the evidence phosphate company merge That cor making contract with of the having porations, nor of the same of did the foree when contract was meaning activity is not ficers corporate end Its offices came into business. agency to it what either or dispute. accorded make one a mere It must have itself instrumentality see or nothing Nor do we v. more. of the other. Peterson calls for and the stock history acquisition Chicago, Co., Rock Island & R. R. of the P. how Conley 364, 841; 27 company 513, S. Ct. 51 L. Ed. in the declara- being Works, 406, 190 23 material; no claim v. Mathieson U. S. Alkali there acquisi- wrong 1113; 47 v. Ct. L. Ed. Pullman Co. tion that there was phos- Missouri R. R. 115 6 financial condition Pacific U. S. tion. became S. Ct. 29 L. Ed. In re phate after defendant Watertown Paper Pittsburgh when the (C. A.) F. 252; in view 'owner, purposes 169 Co. C. de- ease (C. & 232 E. Buffalo Co. Duncan lease was v. made, corporation thereabout on, the evidence 584. This the ease of one clared is not the taking the condition another or other been admitted. So the assets lease leaving and the value, business paying and its wise without fair substituting previous obliga the contracts purpose of it without means meet its real tions, were relevant. Chicago, others as in & Paul Armour Co. and Milwaukee St. of its Bank, R. R. plaintiff claims that v. Third U. S. National being occurred; the lease already 33 L. Ed. Northern Pacif tract being dis- at least Boyd, ic R. conceal R. scheme to sub- adoption, and regarded Nor is it the L. Ed. 931. not did low-price contracts corporation a responsible organizing of these or us stitution liability. The defend- irresponsible defendant’s which it controls to affect one an actual lease was carry contends that ant out some of former but business to be carried intended business transaction yet liability in mis to screen it from ease of adoption terms, according its out fortune in Luckenbach S. S. Co. v. Grace as or ef- intended plaintiff’s of contract was 676; (C. C. 267 F. Portsmouth Cotton low- of the fected, the substitution and that Corp. Refining Fourth National Bank Oil aid a bad act to price lawful contracts a (D. C.) (C. A.) 280 F. affirmed 284 price the market Evidence situation. Nor in 718. is it a where evasion of F. plain- periods was above during these rock of duty public public cor law We rejected. price was also contract tiff’s put poration’s business into or handled bearing motives of on the has some think it through subsidiary, as were Chi controlled con- substituted especially parties,

.the cago, & R. R. Milwaukee St. Paul Co. v. less than price compromise carried a tracts Ass’n, Minneapolis & Commerce 247 Civic U. price in the market market. Of course 62 L. Ed. United plain- obligation of the affected the no wise Co., Lehigh R. R. 31 States v. only con- illustrates the contract, but tiff’s L. Ed. United States v. 55 in what was parties of the purposes duct and Co., Lackawanna W. R. R. Delaware, plaintiff to show that being Evidence done. 873, 59 L. Ed. 1438. U. 35 S. Ct. Nor sup- and had cause knew lease yet party a ease where a third takes over an had taken over and pose that defendant existing situation, predeces contractual his phosphate com- adopted contracts begins ceasing figure it, and sor to car would a fact be rele- pany was offered. Such ry enjoy benefits, being it on and its his acts knowledge of mere the issue. But vant to only adoption of the con consistent with of friends the officers and stockholders explicable on that theory, and and tract bring home would not itself party believe the other he has thus leads sep- deal plaintiff. We cannot notice to Wiggins own, his Fer contract as made the assignments error, arately but with ry R. R. Co. v. Ohio guide been said as a sufficient gard has what jury might 1055. The 188, 35 L. Ed. S. Ct. another, dealing evidence with the following to be true: The found the have trial. corpo a substantial company was phosphate having $3,000,000 of assets. Combining admitted ration about evidence assets, convey away did these excluded, a lease not erroneously verdict was The with that unfavorable state of rule, considering the but, As a demanded justifiable company’s ence company, business, phosphate made went among disposition debts, fair fixed rental to its assets and liable to its of them. taxes, paid, insur cannot reach the as including interest, bond of the defendant be coffers royalties, expenses, belonging phosphate ance, company it until the administration annually. liquidated might $200,000 and its affairs amounted to settled. outstanding just obli phosphate company’s money count for and received fails regarded regards here. gations scrupulously special As counts founded be plant contract, making it, agreeing lessee to make the the new them, spending equal taking tracts with Armour & Co. others did care phosphate plaintiff’s com not in law make $500,000 to this end. The contract lessee, phosphate did not though its pany, controlled to become one with having disappear, organized, defendant, phosphate company but remained but the money ready to re remained as perform its own much bound to and property, doing contracts, capable performing it, as spond its in fact own ever. operation of thereby under the so in its own name caused com- pany wrongfully lease, improvement contract, its which resulted to breach tort, condition and the accu would be have held not to of its own financial and we against up. large go be the cause of fur- mulation of solvent debt action set we But say itself, or in the from an Nothing that, lease ther lessee. aside parties prior defendant, perceive fact we no breach conduct negative necessarily conten of seems these although circumstances, was done. Under such what tions. and domi has onto held and demanded be true that the owned see what is nominated in the bond. This was nated the we do sepa say per ton, $2.80 sufficient reason to that their subject during disregard only if “the corporate should be to rebate sellers rate identities any phos- corporation held to the mere the life the contract should sell ed, or one phate respects plaintiff’s -rock thereof” at agency of other as followed deliveries “Corpora nothing prices. agreement contract. C. J. lower This antecedent price, or what to do market others sold tions,” § one-sided, at. that the point in The sensitive the case is get raised if better not to be the seller could really lease, neither the prices from lower others. Mere contracts at any phosphate company nor its creditors prices effect, only to were have no but deliv- low-price harm, getting its rid of but the long-time cheap eries. contracts with others, & contracts with Armour Co. Armour & Co. which hav- and others were operated had plaintiff which to entitle to doubly operation were not disastrous testified to the rebates. These contracts were effect on contracts with no plaintiff, unprofitable War, indeed, after the World phosphate plaintiff’s save as the contract threatening bankruptcy of phosphate the the year year might de- company from make exchanged company. were for Most of them right liveries on Plaintiff them. plus directly contracts made de cost with phosphate made-. the have the deliveries saving Some was thus made fendant. or company simply perform, refuse to should by and a fur contracts a bettered these price, buy completely could terminate these off saving in the contemplated no doubt ther contracts, cheap plaintiff complain. could not Putting plaintiff. the effect on contract arrange some If it could with one else name of the defend the new contracts in the canceling new contracts as the make phosphate ant instead the ones, plaintiff object. Sup- could the old probably very purpose. suit for this But this only purpose posing the of the substitution against phosphate company on is the rebates, escape escape, from the to be the substituting- theory de in thus that not a purchased, fraud on however is or fully used con for itself it had its fendant wrong plaintiff, plain- nor a breach of instrumentality agency or so that the trolled phosphate company. tiff’s contract Armour Co. and others con deliveries to Since, therefore, ownership the acts of the com neither the to be tinued entitling plaintiff phosphate company’s In stock its rebate. the de- pany plaintiff defendant, identity sued stead, officers, has nor the of their fendant, nor property, did not receive the nor the even difference lease its substitution which clearly sought ap low-price contracts, be recovered. nor It all of these present pears things plaintiff record that this difter- combined entitled the as n transacted, recovery against the de was not a conclusion demanded matter of law to a only evidence, by it, indeed authorized for consideration if fendant, there remains fact judge had in directed the question not have whether should so n phos adopted estoppel byor verdiet. intention plaintiff and phate company’s Each party moved for an instructed delivering rock own, so that made it its specific verdiet. The in requested n others owed prices it lower afterwards at structions if motion denied. should be ex obligation. The letters rebate as its own phrased The defendant its motion thus: just written after one hibited count “The defendant moves the court for a direct may following indi year, lease and one forth, ed for verdiet the reasons hereafter set reply is con adopt. In purpose cate right go jury on but reserves the authority to act writer had that the tended anything may regard disputed as a court contracts, and respect to its defendant in for question fact, in case the court refuses to signed in written the letters were grant motion, and defendant’s motion ar is also by mistake. It (cid:127)defendant’s name a directed verdiet is not to be construed negatived adopt is gued purpose that the regarded having placed the case in the very of rock to shipments court’s hands for a decision of the facts.” name made letters referred were these Specific undisputed matters of fact hun company, that (cid:127)of the controlling. pointed then out motion as de only lading seven showed bills of dreds of motion, The court denied defendant’s they were er consignor and as the fendant granted im Defendant rock oversights, and that all the rors and mediately presented excepted, no further but finally billed request. motion or an If both sides move for testimony of payment it. was made to more, to be instructed verdiet without it is to, president pointed is request find understood that both the court to looked to plaintiff had times only facts, question review the to it complained company for finding supported whether the made it, and received delay, issued checks ease of Magone, substantial evidence. Beuttell v. about letter and, from refunds 39 L. 154, 15 S. Ed. defendant, was was addressed to business Vreeland, Williams any con rebut goes far to This also error. 63 L. 3 A. But L. R. 1038. to its dis plaintiff was so misled tention that a motion instructed verdiet as to advantage by conduct way sufficiencyof the evi to make test of the n create Indeed, it is estoppel. equitable contrary It support verdict. dence to re could easy have to see how opposite par merely not, because it, or rock tendered take the fused to motion, ty makes such a involve a also sur-. n acted always if it had than it otherwise jury render of the constitutional Wiggins The case full facts. known the material contested issues of fact. trial of Ry. Ferry v. Ohio case, happens, as was claimed in this often distinguishable 1055, is 188, 35 L. Ed. S. Ct. indisputable facts entitle the certain that disap original contractor the upon in that there is law them movant a verdict if the transaction, there-, entirely from the peared otherwise, it; but, if the law as he be claims elected, if party he so by releasing the other if sustain his version may still win he can he proceeded name in its own successor Where, and the na disputed facts. from the of the things carry doing “which language of mo out the and. the the ture of the ease adoption of taken, the it is only proceedings with or from were consistent tion other explicable “only on that not intend to movant does apparent contract” and that the the party facts, disputed theory,” request “which led the other court find the made, ought his be made the contract not to he had inference believe that such artificial clearly things appears contrary Empire Cattle truth. State None of those to the own.” 1, 28 Ct. R., of the defendant Many acts Atchison R. of the Co. v. here. explicable 70; Michi Ed. Ann. Cas. with 52 L. were consistent" (C. C. only theory, Chicago gan Copper on that Co. v. Screw Co. theory, but not on that Mechl explicable by and consist Fire Association v. they also 269 F. for present executing (C. A.) 266 323. The theory its F. that it was owitz ent with category. We do belongs there latter That was to the obligations under the lease. re defendant, regard failure defendant to not of adoption of the contract presented specific be to the quest issues provisions of lease that notwithstanding the had not important. If defendant jury was the business in which form .and that there was opinion, former a tance trial, the was hound in jury waived court purpose “kept for lease, secret fact issues of secret controverted law case to submit appellant pay than compelling more of jury. Gunning Cooley, phosphates.” for direct- Hartman market 74 L. Ed. proof rebuts ly the' uncontradicted Fidelity Deposit & Goldsmith Co. v. court not assumption, and leaves this that F.(2d) 89. (C. A.)C. liberty, but bound to determine rebates further that There contention is a undisputed legal appeal this effect col- made in 1923 in no case deliveries facts this record discloses. within the life lectible, because entirely lim- facts make dear to originally These it me The contract was contract. purpose was the terms that it never the defend- 1922, but December ited to quite Phosphates’ contract, be to assume but tonnage year was to ant in one undelivered contrary, having it By special that no action took forward next. carried effect, finding that ton- that a verdict that agreement parties undelivered way on this record be a shred would without nage 1921 was carried over prior to support ofWe it. price. evidence Nothing said therein as to the agreement fair construction of the think the If cause of action could arise out of the delivei-y extend- be the time that arranging defendant act of the for the stipulations price; as to ed under cancellation of the low contracts with protracted is, contract was that life of the others, purpose & Co. and for Armour into 1923. removing and with effect of the condi gave tions which rulings on evi- to re Because of the erroneo.us bates, plaintiff should course have had an dence, and because of the direction of verdict, question instructed for is no judgment is re- there plaintiff, verdict for the just thing. that the defendant that versed, for fur- hut the cause remanded this proceedings ther inconsistent with that alone could not furnish opinion. spring liability, perfectly not, clear to me that it then could instruction, should have had an for that was HUTCHESON, Judge (concur- Circuit all that the find in defendant did. To ring). deliberately adopted face of care- I agree Judge with SIBLEY that fully purpose carried out judgment wrong; court below to assume or become liable Judge with FOSTER there should be Phosphate tract do with that it did so, would litigation. however, end to I not, this do theory permit ought be to have FOSTER, agree Judge it should be supply place done so to evidence ended an affirmance for it did. every Giving every fact ef- the record judgment I reversal, concur in the but, fect possible in favor of believing Judge that this FOSTER liti- plain seems obligation to me that no gation undisputed over an state facts kind sprung against has ever favor ought gen- end, that, I think of a instead defendant, and I that, think fact but reversal, ought eral the reversal to be with jury (Slo- that the tried cause was below to a directions to instruct verdict for defend- cum v. New York Life Ins. ant, appear. a retrial same facts 879) judgment L. 364, 33 Ct. here rendered for defendant. Judge FOSTER, (dissenting). Circuit Whether, developed facts assumptions retrial had sustained the factual appeal This the second in this is case. majority opinion ap- former appeal judg- On former we reversed a peal, accept I should have felt hound that on a ment based verdict directed for defend- opinion case, law this I do not find at the close of the evidence. ant necessary myself decide, though it I find former decision is Our conclusive on the agreement Judge dissent, in Walker’s question there sufficient that evidence majority that which the facts rest- support plaintiff’s the court before cause ed its conclusion that defendant had assumed same is in of action. The evidence the rec- liability support do that appeal. there are ord on this While some conclusion. running ninety-four assignments error rulings admission or of evi- on the exclusion present record here does state only fourteen in dence, form suf- them are given» assumed and impor- facts most ample present evi- properly fieient them in eourt. There this reconcile evidence. my opinion imma- assignments These conclusion reached dence to sustain the rejected terial, Court, admitted no as the the District and we have evidence substantially rights opinion would not affect the substitute our for his. There judgment the defendant. be litigation, this end to should be For these reasons I affirmed. the close of all that at record shows spectfully dissent. plaintiff and defendant the evidence both The rule moved a directed verdict. for both sides situation well settled that question disputed assert that there is jury. If there fact to submitted to the be STATES, O’BRIEN v. and four oth- UNITED judgment, support all to any evidence at er cases. appeal. ex disturbed on cannot be No. 4503. ,to'the ception party rule is Where this: asking submits re verdict for a directed Appeals, Circuit Court of Seventh Circuit. jury, he special quests for instructions July 27, there is undis that, he believes while asserts warranting a record puted evidence disput is also judgment favor, his there which, if is resolved conflict ed evidence him to verdict. favor, his would entitle requests plaintiff submitted In this instructions, special but the incorporated with The defendant not. argument in lengthy direct a its motion ap thereof, but does it support nowhere in special asked pear the defendant quoted motion this structions. nothing opinion amounts majority trial trap for the create unless it be to ought to be tolerated. judge, disputed any idea the defendant verdict, it to a entitled in the record evidence its favor, resolved if the conflict were clearly duty point out derive benefit can court. The mo plaintiff, and its from general governed rule.

tion should 154, Magone, S. 15 S. Ct. 157 U. Beuttell v. 654; Empire Cattle Co. 566, State 39 L. Ed. Ry. Co., Topeka Fe Atchison, & Santa v. 931, 15 52 L. Ed. 28 Ct. 219 U. S. S. Turquoise American Sena v. Ann. Cas. L. Ed. Ct. 31 S. Vreeland, 259 U. 559; Williams v. 3 A. L. R. 438, 63 L. Heye, Birge-Forbes Co. L. Ed. 286. my opinion there is sufficient evidence In support the conclusion that in the record company had become mere eyanamid ego of the alter in fact assumed latter had plain- between (appellee). tiff that, had the I no doubt ease been jury proper instruc- submitted tions, been same. the result would have weigh

However, province not our

Case Details

Case Name: American Cyanamid Co. v. Wilson & Toomer Fertilizer Co.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 21, 1931

Citation: 51 F.2d 665

Docket Number: 5919

Court Abbreviation: 5th Cir.