281 F. 613 | 5th Cir. | 1922
Lamborn & Co. are a partnership composed of 10 persons, nine of whom are citizens and residents of states other than Georgia, and one of whom is an alien residing in New Jersey. Said persons composing said firm brought a suit in the United States District Court for the Southern District of Georgia against W. H. Goff Company, a corporation chartered under the laws of Georgia and a citizen of said state, residing in the Southern district thereof, on two contracts for the sale of sugar made by Lamborn & Co. with said W. H. Goff Company, alleging a refusal of said defendant to take 150
. [7] The special pleas alleging violations of the Lever Act as grounds for nonliability of the defendant under its contract for the purchase of sugar from plaintiffs afforded no ground of defense, and the demurrers thereto were properly sustained. There were no facts alleged which showed that the contracts were entered into otherwise than voluntarily by the defendant, nor any sufficient allegations of any fraudulent misrepresentation of facts by which its agreement was induced. The defendant was therefore bound by the agreements made with plaintiffs. Wilder Mfg. Co. v. Cora Products Co., 11 Ga. App. 588, 75 S. E. 918; Id., 236 U. S. 165, 35 Sup. Ct. 398, 59 L. Ed. 520, Ann. Cas. 1916A, 118.
It is evident that the defendant did not concede that the resale had been made under such circumstances as bound it, as to the amount recoverable, if the plaintiffs were entitled to recover. Its answer denies the allegations of the petition as to such resale, and its brief in this court asserts its right to now question the resale. Clearly, if no valid resale was made, and defendant was not bound by the result thereof, the plaintiffs could abandon their claim therefor and rely on the claim for the difference between the market value and contract price. This is what plaintiffs have done and manifestly the defendant has not been damaged thereby, as the amount thus claimed is less than the undisputed difference between the contract price and the amount realized on the resale made.
“on the hearing of any appeal, certiorari, writ of error, * * * shall give ■ judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.” 40 Stat. c. 48, p. 1181 (U. S. Comp. St. Ann. Supp. 1919, § 1246).
Even if a technical error had been committed, a reversal on the above ground'would be contrary to the above provision.
“Testimony of a witness having personal knowledge as to the market value of a commodity at a given time and place is evidence of a substantive fact, and, if undisputed will demand a finding that the commodity was of the value fixed by the witness. In such a case the jury cannot arbitrarily disregard such testimony and substitute their own opinion as to the market value of the commodity.” McNamara v. Georgia Cotton Co., 10 Ga. App. 600, 672, 674, 73 S. E. 1092, 1094.
See, also, Raney Bros. v. Georgia Cotton Co., 11 Ga. App. 450, 75 S. E. 672; Watson v. Hazelhurst & McAllister, 127 Ga. 298, 56 S. E. 459.
That there are times when it is proper for a court to direct a verdict is clear.
“It is well settled that the court may withdraw a case from them [the jury] altogether and. direct a verdict for the plaintiff or the defendant, as the one or the other may he proper, where the evidence is undisputed, or is of such conclusive' character that the court, in the exercise of a sound judicial discretion, would he compelled to set aside a verdict returned in opposition to it. Phoenix Ins. Co. v. Doster, 106 U. S. 30. 32; Griggs v. Houston. 104 U. S. 553; Randall v. Baltimore & Ohio R. R., 109 U. S. 478, 482; Anderson County Commissioners v. Beal, 113 U. S. 227, 241; Schofield v. Chicago & St. Paul Railway Co., 114 U. S. 615, 618.” Delaware, etc., Railroad v. Converse, 139 U. S. 469, 472, 11 Sup. Ct. 569, 570 (35 L. Ed. 213).
See, also, Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758; Elliott v. Chicago, Milwaukee etc. Railway, 150 U. S. 245, 14 Sup. Ct. 85, 37 L. Ed. 1068; Patton v. Texas & Pacific Railway Co., 179 U. S. 658, 659, 21 Sup. Ct. 275, 45 L. Ed. 361.
The judgment of the District Court is affirmed.