L. N. Childress and Roger W. Crampton v. E. A. Cook, Jr.

HUTCHESON, Chief Judge

(concurring in part and dissenting in part).

For the reasons well stated in the opinion, I concur in the affirmance of the judgment on Childress’s appeal.

As to Crampton’s appeal from the denial of his cross-action, while because of the inadequate manner in which the issues tendered by it were tried, I would not oppose a reversal of the judgment with a remand for trial anew, I must dissent from the opinion that the judgment should be reversed and a judgment here entered for Crampton for $10,000. I do this because I am of the clear opinion that, upon the record made below, including the views of the district judge 1 stated from the bench at the conclusion of the testimony, and the findings and conclusions filed by him on which his judgment denying the cross-action was based, there is no warrant for the entry by us of the proposed judgment.

. The Court: “All right, everybody closes. Now, I will not take time to review in any particularity the present impressions I have about the case because sometimes such impressions are premature, but X will say to counsel that as I see it as of this moment, if the cross-claimant is entitled to any recovery against the defendant, he and his counsel have the uphill position, in my mind, so far as concerns the value of the leases, or, in other words, the $10,000 figure. I think that his counsel should analyze that item carefully and present any argument you may have about it. It just seems pretty plain from, the testimony of the real estate man here that that value didn’t relate to those leases as separate articles of commerce at all, hut related to them only as tied in with this project and I don’t know tohat assurance there is here that this deal could ever have heen placed, no matter hoto diligent the defendant might have heen.

“Therefore, it seems to me that that item of damages might well be too remote and speculative for consideration here. I am not ruling on it; I am just saying that’s why counsel has the uphill position in mind.” Emphasis supplied.