Clark v. McNeill, 25 F.2d 247 (6th Cir. 1928)

In action against brokers to recover margins posted by plaintiff’s intestate, testimony by defendant that alleged conversation between him and plaintiff’s intestate did. not take place held, properly excluded, on ground that witness was interested in suit as opposite party within Giv. Code Frac. Ky. § 606, subd. 2; plaintiff’s testimony as to such conversation being introp. 248dueed by intestate’s - attorney, who was not “agent” within paragraph (d), especially where he testified he was not acting as attorney at time of conversation.

[1-3] Defendants were not entitled to such direction if there was any substantial evidence reasonably tending to support the recovery by plaintiff on either of the two theories already stated. We are disposed to think there was such testimony as to each theory. In determining this question, we must take that view of the proof most favorable to the plaintiff. Worthington v. Elmer (C. C. A. 6) 207 F. 306-309, and cases cited; Crucible Steel Forge Co. v. Moir (C. C. A. 6) 219 F. 151, 153. While one of the defendants testified that it was the intention of defendants that actual delivery of the cotton under the contracts bought and sold for future delivery was to be made, and although the printed form of confirmation of orders sent plaintiff by defendants contained p. 249the statement that “all orders for the purchase Snd sale of any commodity are received and executed with the distinct understanding that the actual delivery is contemplated, and that the party giving the orders so understands and agrees,” as also that the transaction was “subject in all respects to the bylaws and rules of the exchange where executed and the United States Cotton Futures Act, § 5 (26 USCA § 735; Comp. St. § 6309e),” it is noticeable that neither this witness nor any other seems to have said that in defendants’ business any cotton was ever delivered to or by the customer. Cf. Hyman v. Hay (C. C. A. 5) 277 F. 898; also Dunlap v. Perry, 391 Ky. 290, 230 S. W. 291.

The proffered testimony was properly rejected unless plaintiff’s witness McNeill was an agent of the decedent within the meaning of subsection (d). Defendants’ contention in this regard is based on this testimony of D. L. McNeill upon cross-examination: “I am one of his [Jesse McNeill’s] attorneys, and was in on all of his transactions. My brother and I were in close business relations, and I carried Sims out to see him. All statements and transactions between my brother and Marks or Sims were in my presence. I was present as attorney for my brother.” On redirect examination, witness p. 250said: “I was not representing my brother at that time as attorney.”

[7,8] 3. At the time of the alleged making of the 50-point margin limitation, one Sims was in active charge- of the brokerage office at Hickman conducted in the name of J. N. Tarbet & Co. In connection with the testimony of the two witnesses for plaintiff already referred to, as to the acknowledgment, by defendant • Marks of the existence of the agreement, reference was made to Sims as the one who had made the agreement in the first instance.3 In their brief in this court, defendants’ counsel say: “We do not think there was evidence sufficient to assume the agency of Sims or of Tarbet Brokerage, and that such evidence was incompetent in the ease.” We' find in the record nothing to indicate that an objection of ineompeteney was made, and in the absence of statement of ground of objection, the refusal should not be reviewed. Robinson v. Van Hooser (C. C. A. 6) 196 F. 620, 624, 625. Nor where, as here, there was substantial evidence, can we consider whether it was sufficient to establish the agency of Sims. We cannot determine the weight of the evidence or the credibility of the witnesses. That is for the jury. Rochford v. Pennsylvania Co. (C. C. A. 6) 174 F. 81, 83; Shadoan v. Railway Co. (C. C. A. 6) 220 F. 68, 71. It is enough to say tdiat, in addition to the testimony of Marks’ admission that he was bound by what Sims did, there was substantial evidence tending to show that Sims did represent and speak for defendants.5 The court did not assume the sufficiency of the evidence of agency of Sims or of Tarbet & Co. The jury was instructed that “any agreement on the part of Tarbet & Co. that plaintiff would be carried so long as he had up a 50-point margin with the defendants would not be binding upon the defendants, unless you further believe from the 'evidence that Tarbet & Co., in making such agreement, if p. 251any, were acting as the agents of the defendants.” The finding of sueh fact was implied in the verdict. In defendants’ brief there is reference to testimony received under objection that the questions were leading. Not only is such point not assigned as error, hut the questions themselves were not sueh as to constitute error.