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District Court of Appeal, Second District, Division 2, California.


Civ. 8301.

Decided: June 26, 1934

O'Melveny, Tuller & Myers, Homer I. Mitchell, and Albert Parker, all of Los Angeles, for appellant. Kaye & Johnstone, of Los Angeles, for respondent.

Petition for rehearing denied.

We were familiar with the “evidence” petitioner asserts is in conflict with that quoted and relied on in the opinion, and, except as to the immaterial fact as to whether the witness Van Sicklen “resigned” or “was discharged,” see no conflict. In our opinion, the following is a fair sample of such “evidence” petitioner says was omitted: Referring to a conversation the witness Ruckstell had with the executives of defendant corporation, he said: “I informed him [Van Sicklen] as to my arrangement with Tex Rankin; I told him what took place in Los Angeles.” Instead, we set out the statements of “what took place” from the mouths of said witness and his private secretary. Petitioner complains that the correspondence on behalf of plaintiff set out in the opinion was written “for the sole purpose of clearing up an error which had been made by the shipping department of defendant in its monthly report to the government.” The evidence does not show that it was an error, and the report made of sales to the Rankin Company seems to be strictly in accord with the conclusion we have been forced to reach, supported by such evidence as well as the evidence of said Ruckstell, his secretary, and the books of plaintiff corporation. No doubt the letters were written for the purpose of licensing the planes, but it is not asserted that they do not speak the truth; and no way, except by drawing inferences from other inferences directly opposed to the clear statement of facts related, are we able to arrive at an inference even suggesting that any other agreement existed than the one pointed out in the opinion.

We see no merit in the contention that petitioner was prejudiced because the author of the opinion was not present in court when the order of submission was made, inasmuch as respondent submitted the case without argument on the briefs filed.


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