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    U.S. Supreme Court


    254 U.S. 233

    No. 89.

    Argued Nov. 12, 1920.
    Decided Dec. 6, 1920.

    [254 U.S. 233, 234]   Messrs. John G. White, of Cleveland, Ohio, Gustavue A. Rogers and Saul E. Rogers, both of New York City, E. C. Brandenburg, of Washington, D. C., and Austin V. Cannon, of Cleveland, Ohio, for plaintiff in error.

    Messrs. Samuel Seabury, William M. Seabury, and Charles F. Kingsley, all of New York City, and Robert H. McCarter, of Newark, N. J., for defendants in error.

    Mr. Justice McREYNOLDS delivered the opinion of the Court.

    The opinion below is reported in 255 Fed. 242, 168 C. C. A. 202.

    By an assignment executed in Ohio December 28, 1911, the Lake Shore Film & Supply Company, a corporation of that state, undertook to convey to plaintiff in error its claim and right of action against defendants for damages resulting from their violations of the Sherman Act (Comp. St. 8820 et seq.). Relying upon the assignment, he brought suit for $750,000 January 16, 1917, in the United States District Court, Southern District of New York. The defendants denied liability, and set up the following as a separate and distinct defense:

    All parties agreeing, the court directed a separate trial before a jury upon the issues of fact and law arising under the special defense. Plaintiff in error testified in his own behalf and called two other witnesses-none were called by the defendants. The essential facts as well stated by the Circuit Court of Appeals follow:

    At the conclusion of the evidence the defendants asked a directed verdict 'on the ground that the plaintiff has [254 U.S. 233, 237]   not shown title to this cause of action and it now affirmatively appears from the evidence that the agreement under which the plaintiff assumes to bring this suit is champertous and void.' Thereupon the following occurred- Mr. Rogers representing the plaintiff:

    A verdict for the defendants was directed and judgment entered thereon. The Circuit Court of Appeals declared itself concluded by the trial court's finding 'that the plaintiff purchased this cause of action with intent to sue thereon,' and held:

    Among other things counsel for plaintiff in error now insist that--

    The point is well taken.

    Statements by plaintiff's counsel made it sufficiently plain that while he sought an instructed verdict he also requested to go to the jury if the court held a contrary view concerning the evidence. In the circumstances disclosed we think the request was adequate and timely under former opinions of this court. Empire State Cattle Co. v. Atchison, Topeka & Santa Fe Ry. Co., 210 U.S. 1, 8 , 28 S. Sup. Ct. 607, 15 Ann. Cas. 70; Sena v. American Turquois Co., 220 U.S. 497, 501 , 31 S. Sup. Ct. 488; Schmidt v. Bank of Commerce, 234 U.S. 64, 66 , 34 S. Sup. Ct. 730; Williams v. Vreeland, 250 U.S. 295, 298 , 39 S. Sup. Ct. 438, 3 A. L. R. 1038. It should have been granted. Clearly some substantial evidence strongly [254 U.S. 233, 240]   tended to show that the assignment was taken in extinguishment of an existing indebtedness and not for mere speculation upon the outcome of intended litigation.

    The judgment below must be reversed and the cause remanded to the District Court for further proceedings in conformity with this opinion.

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