
    No. 288
    LETTA v. CINCI. IRON & STEEL CO.
    U. S. Court of Appeals, Sixth Circuit
    No. 3664.
    Dec. 19, 1922
    285 Fed. 707
    APPEAL AND ERROR — (1) Implied finding of facts, in verdict directed on motions of both parties, not reviewable, if supported by any evidence — (2) Question for review, where verdict is directed after motions by both parties. ESTOP-PEL — (3) One party, who permits the other to :act on misconstruction of the contract, is bound by it — (4) When need not be pleaded.
    Attorneys — Goodhart, Swing, etc., for plaintiff in error; Dinsmore, etc., for defendant in error.
   DENISON, J.

Epitomized Opinion

Letta, a resident of Italy, brought a suit in a J. S. District Court against the defendant company ;o recover commissions earned by him in*the sale in Italy of machines made by the latter company. Plaintiff claimed in his petition that there was an ixpress contract to pay him a certain commission >r to allow him a discount from the stated price vhereby he was entitled to a certain margin of rrofit. The evidence showed that the dealings between the parties contemplated only a purchase by :he plaintiff from the company and that no agency •elationship existed. However, it also appeared fiiat defendant knew that Letta misunderstood the >ffer and had interpreted it as an offer to pay com-nissions out of the quoted prices. It also appeared ;hat the defendant accepted orders from Letta for L22 machines by cablegram, and did not advise him >f the true situation until later by a letter. At the ¡(inclusion of the trial each party requested an nstrueted verdict, and neither one accompanied this notion with any special or alternative requests. As ihe court held for defendant, plaintiff prosecuted srror. In reversing the judgment, the court held:

1. Where each party moves for directed verdict, my general finding of facts neeessraily implied in ;he verdict directed is not reviewable, if supported ay any substantial evidence.

2. Where, after motion by each party for directed verdict, a verdict was directed for defendant, the question on review is whether plaintiff was entitled to an instructed verdict in his favor to any extent md on any theory raised by the pleadings.

3. A party to a contraetj who knows that the other party is acting under a misconstruction, but permits fiiat action to go on prejudicially, is bound by that misconstruction.

4.Where' an action is based on a contract, express or implied, facts which estop defendant to deny the construction of the contract claimed go to proof of the contract, and need not be pleaded as an estoppel.  