C. Newton Jeffress v. J. Daniel Weitzman , 221 F.2d 542 ( 1955 )

221 F.2d 542

C. Newton JEFFRESS, Appellant,
v.
J. Daniel WEITZMAN, Appellee.

No. 12384.

United States Court of Appeals, District of Columbia Circuit.

Argued March 16, 1955.

Decided March 31, 1955.

Mr. Arthur J. Hilland, Washington, D. C., with whom Mr. Vincent C. Burke, Jr., Washington, D. C., was on the brief, for appellant.

Mr. Leonard S. Melrod, Washington, D. C., with whom Mr. Joseph V. Gartlan, Jr., Washington, D. C., was on the brief, for appellee.

Before BAZELON, FAHY and WASHINGTON, Circuit Judges.

PER CURIAM.

1

Appellant, a real estate broker, filed suit in the District Court against appellee in a two count complaint. The first count alleges in substance that defendant promised to pay plaintiff the usual and customary real estate broker's commission if defendant purchased certain real estate the availability of which was brought to his attention by plaintiff, but which defendant in fact purchased through another agent. The court granted defendant's motion for summary judgment. As permitted by Rule 56 (b), Fed.Rules Civ.Proc., 28 U.S.C.A., the court before ruling considered a deposition in which plaintiff fully set forth the factual basis for his claim of a promise as alleged. No other facts being advanced summary judgment for defendant was proper, for the deposition shows no factual issue which would have justified the court in refusing to direct a verdict for defendant; that is, as the Rule states, defendant was entitled to judgment as a matter of law. Rule 56(b), supra; Dewey v. Clark, 86 U.S.App.D.C. 137, 143, 180 F.2d 766, 772.

2

The second count sought damages for alleged fraud and deceit by defendant in concealing from the owners and sellers that plaintiff was the procuring cause of the purchase by defendant; but the allegations of this count if true make out no legal obligation on defendant's part. We agree that this count was properly dismissed on motion.

3

Affirmed.