Taylor v. Nevada Humboldt Tungsten Mines Co.

GIEBERT, Circuit Judge

(after stating the facts as above). There were no findings of fact in the court below, and none were requested. The assignments of error present no question of law. They are all directed to the decision of the court upon the facts, and to some portions of the court’s opinion upon the facts. In brief, it is assigned as error that the court failed to find1 the facts as the complaint alleged them to be, but found that.the appellant had "failed to establish by a fair preponderance of the evidence the allegations that false representations had been made by the defendants Poole, Murrish, Nenzel, and Friedman, or that the appellant was misled thereby.- In his brief the appellant admits that there -was a sharp conflict in the testimony as to the making of false representations, and throughout the brief he takes issue with the trial court on the questions of fact, contending that the allegations of the bill were established by the fair “preponderance of the evidence.” It is nowhere asserted that the conclusions of the court below were not supported by competent evidence. The contention is that the court’s finding of fact was contrary to the weight of the evidence. These admissions in the appellant’s brief are sufficient to dispose of the merits of the controversy on the appeal. All the testimony in the case was taken before the court. The court had the opportunity to see and hear the witnesses and observe their demeanor. The opinion of the court shows that an exhaustive and careful review was had of all,the voluminous testimony. Under those circumstances the finding of the court is final upon this appeal, Butte & S. Copper Co. v. Clark-Montana Realty Co., 248 Fed. 609, 616, 160 C. C. A. 509; Butte & S. Copper Co. v. Clark-Montana Realty Co., 249 U. S. 12, 30, 39 Sup. Ct. 231, 63 L. Ed. 447.

Upon our examination of the testimony as it appears in the transcript, and unaided, as was the court below, by the advantage of seeing and hearing the witnesses, we find the case, as the appellant admits it to be, one in which on the main issues the testimony was sharply conflicting. And we find, as did the court below, evidence that the appellant’s dealings with the defendants were lacking in that degree of equity which is required of one who seeks relief in a court of equity. Ther appellant’s option was obtained on January 16, 1919. The purchase price of the property was then fixed at $498,400. The following month he began to urge a modification of the option. His argument was that no sale of the property at the agreed price was possible, and that the tungsten market was bad. On April 2, 1919, a modification of the contract was made whereby he was given easier terms. On June 2 he sought further modification of the terms. The modification then requested was rejected. He failed to make the advances which he had agreed to make on June 16, On July 16 his option expired, and thereafter the property was sold to Eoring. We agree with the court below that the appellant has failed to prove that he was deceived by the defendants, and that from the time of obtaining his first contract he pursued a consistent plan to secure the property for less than the stipulated price and for the smallest possible outlay of money, and that he never performed what he agreed in the contract to perform and never made an unconditional offer of performance.

The decree is affirmed.