PHŒNIX SECURITIES CO. v. DITTMAR, 224 F. 892

GILBERT, Circuit Judge (after stating the facts as above). Upon the assignment that there was no evidence to sustain the judgment, the question arises; To what extent may the decision of the court below be reviewed here upon the writ of error ? The statute of March 3, 1865 (13 Stat. 501; Rev.

Stat. §§ 649, 700), provides in substance that the finding of the court upon the facts, in a case where an action is submitted to the court by a written consent to waive a jury, shall have the same effect as the verdict of a jury, and that the rulings of the court in the progress of the trial of the cause, when excepted to at the time, may be reviewed upon writ of error or upon appeal, provided the rulings be duly presented by bill of exceptions and that, when the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment.

Under this statute, the general finding of the court in such a case is not subject to review in an appellate court, except in cases where there is no evidence to sustain the finding, and then only when that question has been expressly presented to the trial court and an exception has been saved to the ruling thereon. Said Mr. Justice Woods, in Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L.

Ed. 862: “If tbe question was whether all the evidence was sufficient in law to warrant a finding for the plaintiff, he should have presented that question by a request for a definite ruling upon that point.” In Pennsylvania Casualty Co. v. Whiteway, 210 Fed. 782, 127 C. C. A. 332, this court said: “When an action at law is tried before a jury, their verdict is not subject to review unless there is absence of substantial evidence to sustain it, and even then it is not reviewable unless a request has been made for a peremptory instruction, and an exception taken to the ruling of the court.

When a jury is waived, and the cause is tried by the court, the general finding of the court for one or the other of the parties stands as the verdict of a jury, and may not be reviewed hi an appellate court unless the lack of evidence to sustain the finding has been suggested by a x-equest for a ruling thereon, or a motion for judgment, or some motion to present to the court the issue of law so involved, before the close of the trial. Martinton v. Fairbanks, 112 U. S. 670, 5 Sup. Ct. 321, 28 L. Ed. 862; Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 22 Sup. Ct. 55, 46 L. Ed. 113; Boardman v.

Toffey, 117 U. S. 271, 6 Sup. Ct. 734, 29 L. Ed. 898; Barnard v. Randle, 110 Fed. 906, 49 C. C. A. 177; United States Fidelity & G. Co. v. Board of Com'rs, 145 Fed. 144, 76 C. C. A. 114; Felker v. First Nat. Bank, 196 Fed. 200, 116 C. C. A. 32; Bell v. Union Pac. R. Co., 194 Fed. 366, 114 C. C. A. 326.

Tliere was no suck request or motion made in the case in hand, and the judgment oí the court below is therefore conclusive of the facts determined thereby.” The case at bar was submitted to the court for decision upon the pleadings and evidence at the close of the trial, and the question whether there was any evidence to sustain the judgment for the plaintiff was not presented to that court.

Under these circumstances, upon a review of the case in this court we are confined to the consideration of the question whether the complaint stated a cause of action, and wlielher ány objection was taken and exception reserved to the admission of testimony in the course of the trial. The defendant objected to certain testimony offered on the trial, tending to prove the reasonable value of the services rendered by the plaintiff, and to the ruling of the court in admitting such testimony over its objection duly excepted.

It is contended that it was error to admit such evidence for the reason that there was no testimony whatever tending to show that the defendant ever promised to pay plaintiff the reasonable value of his services as a broker. But it does not follow from that fact that the plaintiff could not recover upon a quantum meruit. It is true that, where a broker elects to stand on a special contract, he cannot recover on a quantum meruit. Veatch v. Norman, 109 Mo. App. 387, 84 S. W. 350; Edwards v. Goldsmith, 16 Pa. 43; McDonald v. Ortman, 98 Mich. 40, 56 N. W. 1055; Emery v. Atlantic Exchange, 88 Ga. 321, 14 S.

E. 556; McDonnell v. Stevinson, 104 Mo. App. 191, 77 S. W. 766; Hammers v. Merrick, 42 Kan. 32, 21 Pac. 783; King v. Stephenson, 29 Okl. 29, 116 Pac. 183; Bentley v. Edwards, 125 Minn. 179, 146 N. W. 347, 51 L. R. A. (N. S.) 254. But one of the causes of action pleaded by the plaintiff in tin; case at bar was for the recovery of the reasonable value of his service.

It is the general rule that if the plaintiff fails to prove performance of the special contract, and fails to show that he has accomplished the precise thing which would entitle him to the compensation agreed upon therein, and yet shows that the contract established the relation of agency, and that the defendant has taken the benefit of that which the plaintiff did in pursuance of the contract, and has appropriated the plaintiff’s services, the latter may recover the reasonable value of such services upon a quantum meruit. Sussdorff v. Schmidt, 55 N. Y. 319; Steinfeld v. Storm, 31 Misc. Rep. 167, 63 N. Y.

Supp. 966; Clark v. Davies, 88 Neb. 67, 129 N. W. 165; Veatch v. Norman, 95 Mo. App. 500, 69 S. W. 472; Wheeler v. F. A. Buck & Co., 23 Wash. 679, 63 Pac. 566; In re Breon Lumber Co. (D. C.) 181 Fed. 909. It is contended that it was error to admit evidence of reasonable value of the plaintiff’s services for the further reason that no evidence was adduced to prove the express promise to pay such reasonable value, which was alleged in the second count, and-that therefore there was variance between the complaint and the evidence which was so received and objected to.

But, if there was such variance as is now alleged, the right to predicate error on the admission of such testimony 'was waived by the defendant’s- failure to present specifically that ground of objection at the time when the testimony was offered. In Roberts v. Graham, 6 Wall. 578, 18 L. Ed. 791, the court said: ‘‘The objection of variance not taken at the trial cannot avail the defendant as an error in the higher court, if it could have been obviated in the court below.” See, also, Nashua Savings Bank v. Anglo-American Co., 189 U. S. 221, 231, 23 Sup. Ct. 517, 47 L. Ed. 782; Preiss v. Zitt, 148 Fed. 617, 78 C.

C. A. 56; and Sussdorff v. Schmidt, 55 N. Y. 319. We find.no error. The judgment is affirmed.