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CASES ON REHEARING.
CASES IN WHICH REHEARINGS HAVE BEEN GRANTED
American Can Co. v. Hickmott Asparagus Canning Co..........142 Fed. 141
Rehearing denied March 19, 1906.
Seattle Electric Co. v. Hartless.
.144 Fed. 379 Rehearing denied March 19, 1906. South Dakota Cent. R. R. Co. v. Chicago, M. & St. P. R. Co......141 Fed. 578
Rehearing denied Jan. 2, 1906. Southern Pac. Co. v. Cavin..
.144 Fed. 348 Rehearing denied June 28, 1906. 146 F.
UNITED STATES CIRCUIT COURTS OF APPEALS AND THE
CIRCUIT AND DISTRICT COURTS.
(Circuit Court of Appeals, Sixth Circuit. May 1, 1906.)
À TRIAL-DIRECTION OF VERDICT-REQUEST BY BOTH PARTIES_OPERATION.
Where each party requested the court to instruct the jury to return a verdict in his favor, it was tantamount to an affirmance by both that there was no substantial conflict in the evidence, and that the facts raised only a question of law.
[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, $ 400.] 2. EVIDENCE-OPINION.
In an action for broker's commissions, a question asked defendant as a witness as to whether he understood that plaintiff came to defendant's residence representing the purchaser, and not as defendant's agent, was inadmissible as calling for defendant's opinion,
[Ed. Note.For cases in point, see vol. 20, Cent. Dig. Evidence, $8
2149-2185.] 3. BROKERS-CONTRACT-OPTIONS—CONSTRUCTION.
Plaintiff procured a contract authorizing him to sell defendant's timber land on a 5 per cent. commission; and, having found a purchaser, presented to defendant for his signature an option giving the grantee the right to purchase within 60 days. Defendant, before signing the option, but without any conversation with plaintiff, changed the same. so as to read that the price was "net cash" to him. Held, that such alteration meant that the price was net cash to defendant as between himself and the purchaser and had no reference to defendant's contract with plain
tiff for commissions. 4. SAME.
Defendant wrote plaintiff authorizing him to sell defendant's timber land in Arkansas agreeing that if plaintiff put defendant in munication with a reliable purchaser defendant would protect plaintiff on a commission of 5 per cent. Plaintiff immediately corresponded with a purchaser, who, at plaintiff's direction, wired defendant for a price; and this being agreed on, the purchaser wrote plaintiff a letter concerning the property inclosing a skeleton option which he desired defendant to execute. Plaintiff then went to defendant's place of business, showed him the purchaser's letter with the option, and defendant after some delay signed the option after inserting that the price should be net cash to him, but without any statement that it was to be free of commis
sions. Held, that defendant was not justified in believing that plaintiff was acting for the purchaser, and that it was therefore error for the court to direct a verdict for defendant in plaintiff's action for commissions. In Error to the Circuit Court of the United States for the Western District of Tennessee.
Action in assumpsit to recover the sum of $12,000, claimed to be due the plaintiff, A. M. Love, for his services in bringing about a sale of a tract of land belonging to the defendant, Scatcherd. The pleas were non assumpsit and nil debit. At the conclusion of all the evidence the court was requested by the defendant to instruct the jury to find against the plaintiff. The plaintiff thereupon requested the court to instruct a verdict for the plaintiff. There were no other requests and no exception to rulings upon evidence. The court instructed a verdict for the defendant and this is assigned as error.
The defendant below, who resided at Buffalo, N. Y., owned a body of land situated in Arkansas containing about 22,000 acres. The plaintiff below lived at Jonesboro, Ark., and in vicinity of Scatcherd's land. The contract, if any there was, by which plaintiff was to be compensated for bringing about a sale of Scatcherd's land, is to be deduced from certain correspondence between the parties. Such of it as is found in the transcript here follows: Prior to July 29, 1903, the plaintiff had written to the defendant, and on the 29th of July the defendant wrote to the plaintiff as follows:
"Buffalo, N. Y., July 29, 1903. “Mr. A. M. Love, Jonesboro, Ark.—Dear Sir: We are in receipt of yours of the 20th and contents noted. We are not prepared at this time to make terms with you as we have concluded to take our property out of the market for the present. If you will write us again about the middle of next month, we will have come to a decision in the matter and will be pleased to entertain your proposition. "Yours truly,
Scatcherd & Son." The letter to which the above is a reply is not in evidence.
"Jonesboro, Ark., August 15, 1903. "Gentlemen : Referring to yours of July 29th, in which you said you would at this time be in position to quote prices and terms on 22,000 acres of forest land you have near here, I will say that I have a man that wants to buy if price and terms are right. Mention me price you want for the tract and pay me 5 per cent. commission, also please mention your net price and protect me in the price from 50 cents to $1.50 for the trouble and expense of selling. The man that wants to buy was on the land 10 days ago, and will be back in 10 days. I will want you to allow sufficient time for parties to investigate and estimate timber, which is a big job.
"A. M. Love." In reply to this letter Scatcherd & Son, on the 18th of August, 1903, wrote to the plaintiff as follows:
"A. M. Love, Jonesboro, Ark.—Dear Sir: We are thinking of taking our property out of the market, but if you have anybody who is reliable and with whom you can put us in communication regarding this property, we would protect you on a commission of 5 per cent. We would want to have an opportunity to look up the party as to his responsibility before making prices, and if this were satisfactory, before doing so, we would arrange all matters in detail with you. In any event, we would agree to protect you in case you furnish us names, etc. “Yours truly,
Scatcherd & Son." On August 29th the plaintiff wrote to the defendant as follows:
"Jonesboro, Ark., August 29, 1903. "Scatcherd & Son, Buffalo, N. Y.-Gentlemen: I have some parties to look over your land next week from St. Louis, and they will want to know the
first thing what the price is going to be. Please tell me something in the
A. M. Love." This letter the defendant testified that he did not remember to have received. The only reason he gives is that he gets so many letters he can not remember them all.
On September 10, 1903, plaintiff wrote to one E. L. Westbrook the following letter:
"Jonesboro, Ark., September 10, 1903. "Mr. E. L. Westbrook, City-Dear Sir: I am trying to sell for Scatcherd & Son of Buffalo, N. Y., their land at Mosher, Ark. There is about 22,500 acres of land located near the Frisco R. R., with about seven miles of standard guage railroad on it; good band saw, mill building, etc.
The land is good for farming when the timber is taken off. I would like to sell you this land, as I think you can make some money out of it. You are also interested in some railroad propositions, as I understand. Why not take this up and you would have seven miles built, which would be a starter. I enclose you plat of the land and estimate of the different kinds of timber. Please let me know at an early date what you think of it. “Yours truly,
A. M. Love." This letter was accompanied by a plat of the land, and an estimate of the timber and improvements.
On September 15th Westbrook wrote to the plaintiff as follows:
"Mr. A. M. Love, City-Dear Sir: I have been thinking of your suggestion to me about the purchase of the property of Scatcherd & Son, at Mosher, in Poinsett county, this state, and I am very favorably inclined to take hold of it. I represent some people who have money enough to carry out anything they become interested in, and if I took hold of the proposition it would be on a cash basis, and I believe I am now ready to make a cash offer of $9 per acre for this property, provided, of course, the timber is there that is thought to be there. When you are in again, please call up my office and we will place in writing what we agree on. I expect to be here all this week, but in the event I am out when you call, leave a note for me, making an engagement for any day most convenient for you. “Very truly yours,
E. L. Westbrook." To which the plaintiff replied on the 18th of September as follows:
"Jonesboro, Ark., September 18, 1903. “Mr. E. L. Westbrook, City-Dear Sir: I have just received yours of the 15th and called at your office but found you were not in. I am out of town a good deal, as you know, and I will ask you to take the matter up with Scatcherd & Son, of Buffalo, direct, and they will give you all the information you want about the property, also prices, terms, etc. Please let me know how you are getting along with it. "Yours truly,
A. M. Love." On September 26th Westbrook telegraphed to the defendant as follows:
"Jonesboro, Ark., Sept. 26, 1903. “John N. Scatcherd & Son, Buffalo, N. Y.-Will you accept $9 per acre cash for Poinsett county land?
"Edward L. Westbrook." To which the defendant replied by telegram: “Will accept $10 net cash if closed immediately.” On September 28th Westbrook telegraphed to the defendant as follows: "Name day next week; can see you about land matter." To which the defendant replied:
"Meet October six; will you be here? Others wire will be here beginning of next week.”