Rudy LUTHER, Appellant, v. LOEWI & CO., INC. and Merrill J. Anderson, Appellees.
No. 76-1464
United States Court of Appeals, Eighth Circuit
Feb. 23, 1977
Submitted Dec. 15, 1976.
The party opposing a motion for summary judgment is to be given the benefit of all reasonable doubts in determining whether genuine issues of fact exist. See McSpadden v. Mullins, 456 F.2d 428, 430 (8th Cir.1972); United States v. Farmers Mut. Ins. Ass‘n of Kiron, Iowa, 288 F.2d 560, 562 (8th Cir.1962). Summary judgment is an extreme remedy and only to be granted where no genuine issues of fact are demonstrated. See Anderson v. Viking Pump Div., Houdaille Industries, 545 F.2d 1127 (8th Cir. 1976). In light of the factual conflicts indicated above, summary judgment was improperly granted by the District Court. We, therefore, have no alternative but to remand the matter to the District Court. The question remains as to where the burden of proving the nature of the charge lies. In our view, once Wells established that she filed this action within ninety days of receiving a right-to-sue letter, the burden shifted to Sherwood to demonstrate she was obligated to file the action at an earlier date.6 To hold otherwise would defeat the broad remedial purposеs of Title VII. See Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir.1975).
The appellant is granted $250.00 in attorney fees and costs on appeal are taxed to the appellee.
We reverse and remand this action to the District Court for proceedings consistent with this oрinion.
Joe A. Walters, Minneapolis, Minn., for appellee, Loewi & Co.; Kent E. Richey, Minneapolis, Minn., on brief.
Edward J. Parker, Minneapolis, Minn., for appellee, Merrill J. Anderson; Daryle L. Uphoff, Minneapolis, Minn., on brief.
Before HEANEY, ROSS and STEPHENSON, Circuit Judges.
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 brоkerage 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 cоnnection 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 neсessary 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 ordеrs 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 behаlf, 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, howevеr, and
Luther filed a complaint, stating that Loewi and Anderson had committed violations of the
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 3500 shares of National Car Rеntal stock and that if he would deliver the 3500 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 whiсh 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 hаd 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. Ass‘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
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 tо 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. Our arithmetic at the time was based on the 3,500 shares times the one point difference, times double or two, which was equivalent to $7,000.
*
Q. What you are saying is as a Registered Reprеsentative in charge of the account you used your best efforts in investing the proceeds of the National Car Rental sale stock in the account on Mr. Luther‘s behalf? A. Yes, sir. I did.
Q. You are saying you used good judgment?
A. I used my best judgment.4
Viewing the testimony in its totality, Anderson‘s opinion that Luther had been “let down” is most logically understandable as a mere expression of regret that the venture had not been successful and lacks the certainty and unequivocal nature of an absolute admission.5
Appellant also contends that various findings of the district court are clearly erroneous. We are bound by the well-established principle that an аppellate court must take the view of the evidence and accept such
Under this standard of review, the record reflects that Anderson‘s obligation was confined to utilization of his best efforts to invest in attractive underwritings or other securities in Luther‘s behalf and that the diminution in value of Luther‘s account was not attributable to Anderson‘s nonfeasance, but rather the collapse of the overall stock market. The record contains insufficient evidence demonstrating that Loewi‘s main office directly prevented Anderson from producing profitable investments for Luther through a failure to provide its Minneapolis branch with more attractive underwritings. Furthermore, substantial evidence supports the trial court‘s determination that Anderson exercised a high degree of care in procuring the best possible stock investments for Luther‘s account and fulfilled the contract with Luther in good faith.
Affirmed.
ROSS, Circuit Judge, dissenting.
The practical effect of the primary factual determination by the trial court was that Mr. Luther sold 3,500 shares of stock to Loewi & Co., Inc. at a price at least $3,500 below the market price in exchange for a promise that Loewi would use its “best efforts” to make up the $3,500 loss plus another $3,500, but without any guarantee to even make up the $3,500 loss. I consider it to be illogical and highly unlikely that an intelligent investor would make such a stupid arrangement with his broker, and I further believe that if in fact such a one-sided deal was made, Loewi breached its ethical, if not its legal, responsibility to its customer.
These observations, coupled with the absolute admission by Anderson that a guarantеe had been made, as set forth on page 4 of the majority opinion, and considering the equivocal nature of much of Mr. Anderson‘s other testimony, cause me to believe that the trial court made a clearly erroneous factual determination concerning the oral agreement and that the judgment should be reversed.
STEPHENSON
Circuit Judge
Notes
*Q. [The Court]: Now tell us what he [Luther] said.
A. * * * He said then, “What is there in it for me?” I said, “What we possibly could do in order to provide you with that incentive to sell that stock to us so that we could make this delivery of the 3,500 shares, we could utilize the proceeds of the sale of the stock — I think it was around $15,000 or $16,000 — as a result of the sale of the 3,500 shares of National Car Rental Stock, and we would use our best efforts then to invest in attractive securities including underwritings to achieve a twice the profit of what he would normally achieve by selling the block at current prevailing prices, which were not one point higher than they were when the over-sale occurred.”
*Q. * * * What did you say to Mr. Luther then to persuade him it was a good deal fоr him to deliver that stock to you at a price of $16,375 when he could have sold it on the market that very day for a price of $20,125? What did you say to Mr. Luther about that?
A. The answer is pretty obvious by virtue of the testimony and I said I don‘t know how many times before that the arrangement we had with Mr. Luther was not to give him only the $20,125 but something in excess of that which was a premium and we would use our best efforts to do that. Mr. Luther wouldn‘t be selling the stock at the prevailing market price but as somewhat of a premium.
*Q. Mr. Anderson, you exercised your best efforts, did you not, on behalf of each and every single customer who was a client of yours? A. I certainly do and have never guaranteed to any of those same clients that I would get a dollar figure back.
Q. As a matter of fact, you indicated to Mr. Luther that you were not merely going to attempt to do that, you were going to do it?
A. I don‘t believe I said that in those terms and if you are trying to say that I was going to do it, absolutely guarantee it, the answer is no.