109 F.2d 443 | 2d Cir. | 1940
The record supports the crucial findings of fact of the district judge, so that we cannot hold them to be “clearly erroneous”. Rule 52(a), 28 U.S.C.A. following section 723c. Hegarty’s testimony, which the judge accepted, was that it -was well understood by everyone on July 19, 1935, that his firm alone was to accept any part of the risk of the purchase, and that nobody had any interest in the venture except Grier, and he only by way of “finder’s fee”. Grier disclaimed this but asked that the plaintiff among others should have a participation, the amount of which was to be left to Hegarty’s discretion. The plaintiff says that nobody confirmed Hegarty as to this last point; but when Hegarty spoke to Buck after the deal went through, it is plain that Buck understood that Hegarty was to fix the shares of everyone. Besides, Hegarty’s uncorroborated testimony would have been enough to support the finding.
The plaintiff having refused the participation offered to it, cannot now demand the profits which acceptance might have brought; its share, so far as it had a share, was no more than an option. It complains that, since Hegarty offered the participation only on condition that it release any rights against him, his tender was not performance, because of the doctrine
Judgment affirmed.
