289 F. 220 | 5th Cir. | 1923
This suit was brought by J. Numa Jordy against C. W. Fouke, Mrs. George W. Fouke, and S. H. Hindman, partners engaged in business under the firm name and style of the George W- Fouke Lumber Company, who were the owners of a saw-. mill and a large body of land and timber, and against the Mississippi & Western Railroad Company, a corporation owned principally and controlled by the partnership, and used almost exclusively as an adjunct to the sawmill.
January 6, 1921, the plaintiff, who was a real estate broker, entered into a contract with the defendants by which it was agreed that he should be their exclusive agent until June 1, 1921, for the salé of their’ latid, timber, sawmill, and railroad, and should receive as his compensation 3 per cent, of the purchase price in the event of a sale. The declaration alleges that -prior to June 1, 1921, the plaintiff found parties, able, and willing to purchase, to whom the defendants after-wards sold their said property for $550,000.
The defendants filed a plea of the general issue, and a special plea, which sets out a suit against plaintiff for $250 damages, in which the defendants were made garnishees, and in which they were held not liable on their answer that they were not indebted to the plaintiff. A demurrer to the special plea was sustained.
During April and May of 1921, the plaintiff interested W. M. Waterman, W. F. Ingram, and Henry Walker.in the property, showed it to them, and introduced them to the defendants, to whom an offer of purchase was made. Evidence for the plaintiff is sufficient to prove that Waterman, Ingram, and Walker bought the property before the 1st of June. Evidence for the defendants is to the effect that po conveyance of the property was agreed upon until June 15, at which time
The defendants surrendered possession of the property about July 1,. 1921. At the time of the trial the cash payment of $125,000 had been made, and $100,000 in addition had been paid on account of the Hayes Land & Timber Company contract. C. W. Fouke testified that there would be a shortage of 17,000,000 feet of timber according to the cruise which the Waterman-Fouke Lumber Company had made.
August 29, 1921, the defendants conveyed the property, which plaintiff was employed to sell, to the Waterman-Fouke Lumber Company, a corporation with an authorized capital of $600,000, whose letters patent were issued July 19, 1921. Capital stock of the par value of $200,-000 was issued to the defendants, who at the time of the trial had assigned stock of the par value of $86,000 in payment of their debts to various creditors. The balance of the capital stock was issued to Waterman, Ingram, and Walker.
At the close of the evidence the defendants moved the court to direct a verdict in their favor, upon the grounds (1) that the undisputed evidence disclosed a mere incorporation of their partnership, business, instead of a sale; and (2) that the transactions with Waterman, Ingram, and Walker, even if they constituted a sale, occurred after plaintiff’s contract had expired. But the court denied the motion, and the defendants excepted.
The District Judge instructed the jury that the plaintiff could not recover, unless he completed the sale prior to June 1, 1921, even though the defendants made a sale thereafter; that, if they should find for the plaintiff, they should not allow a commission upon that 'part of the purchase price represented by the stock issued to the defendants, but limited the purchase price to the $125,000 cash payment, and the $227,000 which represented the indebtedness of the defendants to the Hayes Land & Timber Company. The jury returned a verdict, based upon these two amounts for $10,560.
The death of Mrs. George W. Fouke was suggested af the trial and the suit was dismissed as to her. This writ of error was sued out, and a supersedeas bond given on behalf of the other defendants, by counsel who represented them at the trial. Hindman, one of the defendants, now claims that counsel acted in these matters without his authority, and moves to dismiss the writ of error as to him. The motion is granted, and a severance allowed to the remaining defendants. The authority of counsel for the defendants to execute the supersedeas bond on behalf of Hindman is-not now involved, and we do not pass upon if.
It was for the jury to settle the conflict in the evidence as to the time when the sale was made. The evidence for the defendants that it was completed within a few days after the expiration of plaintiff’s contract is not very convincing, and it was clearly within the province of the jury to reject it.
Error is not made to appear by any of the assignments, and the judgment is affirmed.