author: LAY, Circuit Judge.

text:
    C. Ed GAINES, Appellant, v. C. W. JONES, et al., Appellees.
    No. 73-1090.
    Unted States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1973.
    Decided Oct. 18, 1973.
    Rehearing Denied Nov. 8, 1973.

      Charles W. Medley, Farmington, Mo., for appellant.
    Harry P. Thomson, Jr., Kansas City, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   LAY, Circuit Judge.

Under the terms of a written contract the plaintiff, C. Ed Gaines, was employed from October 1, 1969, to December 31, 1971, by the defendants C. W. Jones and C. W. Jones and Jones Investment Company d/b/a Summit Homes and Jomaco, Inc. Gaines’ services were terminated on May 15, 1970, and he subsequently sought damages for the alleged breach of contract by the defendants. The contract contained a liquidated damages clause that required the defendants to pay plaintiff $75,000 in the event Gaines was discharged within the first year.

The trial was held, with jury waived, before the district court, the Honorable John W. Oliver presiding. The court held in favor of the defendants on alternative grounds. The district court found that plaintiff had failed to prove performance, that defendants had been induced to sign the contract through fraudulent misrepresentations, and that the liquidated damages clause of the contract was unenforceable as a penalty clause. Alternatively, the trial court found that the contract was void because of a mutual mistake of fact as to what duties plaintiff was to perform under the contract. We find that the district court ruling'was clearly erroneous.

Defendants owned approximately 100 acres of land in Independence, Missouri, which they wished to develop. Defendant Jones contacted his tax attorney, Sylvanus Felix, to discuss an apartment project for the land. Among other things, Felix recommended to Jones that he consider conventional rather than FHA financing because conventional financing would provide a higher per acre value for the land. In response to Jones’ request, Felix also recommended Gaines as a suitable person to manage the real estate operation so that Jones would be free to pursue more leisure activities. Felix had the following to say of plaintiff:

“Well, there [is] only one person that I [know] that could possibly fit into your category. I don’t know whether he is what you would want or not and this one person is a very close friend of mine. I’ve known him for many years and he’s only been in the real estate business possibly eight or nine years. He was head of his own big printing company, up until 1960 when he got into financial difficulties and had to give up his company and lose it, and sometime after that, why, he went into the — went into the real estate business.
“He has considerable experience in all phases of real estate activities, including sub-dividing and selling land, building houses and has assisted and worked on apartment houses and these John Hancock loans.
“But there are a lot of things that he would have to have guidance in, but if you want a man that you can take, he might be interested in coming with you. It would have to be some sort of an incentive arrangement.” (Our emphasis).

Subsequently, the parties met to work out the terms of the contract. Plaintiff commenced working for defendants on October 1, 1969, although the contract was not actually signed until December 7, 1969.

Plaintiff’s duties under the contract drawn by Jones and his attorney were specifically written out as follows:

“GAINES shall render the following services to JONES, SUMMIT, JOMA-CO, and GLENDALE DEVELOPMENT CO.:
(1) Assist in evaluating and negotiating purchase of income and/or non-income improved and/or unimproved real properties.
(2) Negotiate and handle sales of properties presently owned, or hereafter acquired by any of them, subject only to advance approval of the price, terms and conditions of sale.
(3) As directed, handle and supervise subdivision development of presently owned unimproved real properties and those acquired in the future.
(4) Generally oversee all construction.
(5) Generally supervise the renting of all apartments constructed by Glendale Development Co.
(6) Do all other things directed by them relating to the duties set forth above.”

It is undisputed that plaintiff’s duties included the handling of financing for the apartment project. However, the rub came when Gaines was not successful in his attempts to secure financing. Defendants assert that it became evident that Gaines was not competent to handle loan negotiations for a multi-million dollar project and generally failed in his performance. Gaines, however, contends he did everything that was ever requested of him and that he performed under the contract as written.

Defendants did not offer any evidence. They insist that plaintiff simply failed to make out a prima facie ease. We must disagree. Under Missouri law plaintiff must prove only that he substantially performed his part of the contract up to the time he was prevented from doing so by defendants. At this point the burden shifts to the employer to show that the discharge was for good cause. Meyer v. Weber, 233 Mo.App. 832, 109 S.W.2d 702, 706-707 (1937)

The trial judge made findings of fact and on this basis determined that plaintiff did not in fact perform his contract and that he was unable to perform the duties contemplated by the parties. We are thus dealing with the question of whether the trial judge’s findings are clearly erroneous. See United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

Upon review of the record we conclude that the evidence does not support the trial judge’s conclusion that plaintiff failed to perform under the terms of the contract. On the contrary, the evidence demonstrates substantial performance and that the defendants have failed to come forward with any evidence of justification for discharge.

We think it well settled law that performance under a personal service contract requires only that a party perform in a good and workmanlike manner, and unless an employee has expressly agreed to secure particular results, the results of his performance are not material. This was the early announced doctrine in Missouri and has generally been followed elsewhere. See, e. g., Middendorf v. Schreiber, 150 Mo.App. 536, 131 S.W. 122, 123 (1910); Dallas Hotel Co. v. Lackey, 203 S.W.2d 557, 562 (Tex.App.1947); Morris v. Muller, 113 N.J.L. 46, 172 A. 63, 64-65 (N.J.Ct. App.1934); 56 C.J.S. Master & Servant § 69 (1948). In Middendorf v. Schreiber, supra, plaintiff was hired by defendant to serve as a jockey for a term of three years. Early in the second year, plaintiff was fired. The defendant attempted to justify the discharge on the basis that plaintiff had turned out to be an incompetent jockey, primarily because he did not win any races. The court held for plaintiff, reasoning that although plaintiff had contracted to perform in a good and workmanlike manner, he did not necessarily warrant that he would win or that he possessed extraordinary skill. It was sufficient that he “possessed and exercised that degree of skill, knowledge, and ability as a jockey which is usually attained and employed by other jockeys.” Id. at 123 of 131 S.W. His obligation, unless the contract had expressly required more, was “to be determined by reference to the manner in which other ordinarily skillful jockeys performed the same service.” Id.

In concluding that Gaines failed to perform, the district court found, inter alia, that plaintiff’s duties under the contract included arranging for a multimillion dollar loan for the apartment project; that plaintiff only contacted two financial institutions in his attempts to secure financing; that plaintiff never attempted to secure FHA financing; that plaintiff had no written communications with any financial institutions; that plaintiff never made an accurate cost estimate of the project to be submitted to potential lenders; that plaintiff had no prior experience with large apartment developments; and that plaintiff had never before negotiated multimillion dollar loans.

As we view the entire record, we cannot agree that these findings established plaintiff’s failure and inability to perform. First, the written contract spells out the obligations of the parties, and although plaintiff orally understood he would work on the financing arrangements for the apartment project, the contract itself is silent as to this being a specific duty. More important, the contract clearly does not require success in obtaining such financing.

Second, there is no evidence that Jones expected plaintiff to exhaust all possible sources in his attempts to secure financing. Plaintiff contacted two companies and felt it was against defendants’ interest to engage in further “loan shopping.”

Third, the undisputed evidence is that plaintiff did not seek FHA financing because defendant directed him not to do so.

The evidence shows that defendants were interested only in a “John Hancock” loan wherein a sale and leaseback arrangement was involved.

Fourth, Jones himself admitted that it was not his custom to make formal written applications for loans. He would “go down and talk to them.” This plaintiff did with two financial institutions. In addition, the evidence is that plaintiff mailed plans to the Glen Justice Mortgage Company and met with representatives of the Charles Curry Company on several occasions. Plaintiff obtained bids from subcontractors and attempted cost estimates by getting a cost per square foot estimate. There is no testimony which demonstrates this was improper performance.

Fifth, plaintiff’s past job experience was accurately represented. He never represented that he had previously negotiated multi-million dollar loans or that he had experience with large apartment complexes. On the other hand, there was evidence that his experience included the development of Southern Oaks, a 300 home-site project in Oklahoma City and Oak Cliff, a housing project of approximately 200 lots. Plaintiff had also previously operated a house building company and a real estate sales company. Plaintiff had prior experience with FHA and John Hancock loans.

Finally, we note that although plaintiff began working for defendants on October 1, 1969, the contract was not signed until December 7, 1969. Defendants thus had ample opportunity to observe plaintiff’s performance before entering into the contract. At no time is specific complaint made or evidence adduced as to plaintiff not performing as required; in fact the only evidence along this line is that plaintiff was unable to successfully secure conventional financing for the apartment project. His failure to obtain a loan commitment was not shown to be from lack of diligence or effort. He explained that the mortgage market was “drying up” and had “gone completely down.” According to plaintiff, Jones at one point told him: “Don’t worry about it. If we don’t do it this six months we will do it next year. There is no problem.”

In sum, the record clearly establishes the terms of the contract and plaintiff’s performance under it. Under these circumstances, we hold the trial court’s findings to be clearly erroneous.

Fraudulent Inducement

It is undisputed that Gaines was not present at the time Felix, Jones’ attorney, first told Jones about plaintiff. Nor is there any evidence that Gaines ever learned what Felix said to Jones. It is difficult to understand how Gaines can be held responsible for Felix’s alleged misrepresentations when there is no evidence that Gaines knew what was said or in any way ratified Felix’s statements. Moreover, we find that Felix’s statements to Jones were not false. Furthermore, the record adequately demonstrates that Jones was sufficiently alerted when Felix added:

“But there are a lot of things that he would have to have guidance in, but if you want a man that you can take, he might be interested in coming with you.” (Our emphasis).

The finding of fraudulent inducement is simply not supported by the record.

Mutual Mistake of Fact

The trial court alternatively held the contract void because of a mutual mistake of fact as to the duties the parties contemplated would be performed by- Gaines, as General Manager, under the contract. The trial court concluded that Jones expected Gaines to carry out all but the highest executive responsibilities whereas it assessed Gaines’ testimony as meaning that Gaines thought he was to perform only those duties Jones assigned to him. There is no evidence to support this finding. Plaintiff testified that he understood Jones “wanted a general manager, somebody to run his full real estate operation in the sales and the development of this balance of land that he had.” If Jones contemplated that Gaines’ obligation was to be successful in obtaining a conventional loan for the project, this must be viewed as a unilateral mistake by Jones, not in any manner induced by Gaines. Absent exceptional circumstances, a unilateral misunderstanding, not induced by a party to the contract, will not afford relief for recission. See, e. g., Saline County v. Thorp, 337 Mo. 1140, 88 S.W.2d 183, 185 (1935); Frederich v. Union Electric Light & Power Co., 336 Mo. 1038, 82 S.W.2d 79, 86 (1935); Law Reporting Co. v. Whitaker, 254 S.W. 715, 716 .(Mo. App.1923).

Liquidated Damages

The contract provided that in the event Gaines was discharged prior to December 1, 1970, he was to receive $75,-000. The trial court found that this clause called for “damages grossly in excess of those actually suffered by the plaintiff and therefore said clause must be considered as a penalty and therefore unenforceable.”

We find this analysis reflects an erroneous application of the law governing liquidated damages. The intention of the parties at the time the contract is executed is determinative of whether a clause is or is not a penalty. In Southwest Engineering Co. v. United States, 341 F.2d 998 (8th Cir.), cert, denied, 382 U.S. 819, 86 S.Ct. 45, 15 L.Ed.2d 66 (1965), this court made the following observation on liquidated damages clauses:

“Two requirements must be considered to determine whether the provision included in the contract fixing the amount of damages payable on breach will be interpreted as an enforceable liquidated damage clause rather than an unenforceable penalty clause: First, the amount so fixed must be a reasonable forecast of fust compensation for the harm that is caused by the breach, and second, the harm that is caused by the breach must be one that is incapable or very difficult of accurate estimation. . . .
“Whether these requirements have been complied with must be viewed as of the time the contract was executed rather than when the contract was breached or at some other subsequent time. Courts presently look with candor upon provisions that are deliberately entered into between parties and therefore do not look with disfavor upon liquidated damage stipulations.” Id. at 1001. (Our emphasis).

At the time the present contract was executed, it clearly met the two requirements noted above. Had plaintiff continued to work for defendant, he could reasonably have expected to earn substantial sums under the provision of the contract which provided for plaintiff to receive ten per cent of any profits derived from land sales. Defendant told plaintiff that he could expect at least $50,000 to $60,000 in the first year, provided a John Hancock loan was obtained. Thus, the liquidated damages clause seems to have been a reasonable forecast of the harm plaintiff could expect if he was discharged prior to sharing in the profits.

Plaintiff’s situation also meets the second requirement in that before any profits were realized, no more than a rough estimate of plaintiff’s loss could be made.

Defendant urges that the test under Missouri law is that the amount agreed upon must not be out of proportion to the damages actually suffered, citing Franken v. Carpenter, 364 S.W.2d 15 (Mo.App.1963). See also Buchanan v. Louisiana Purchase Exposition Co., 245 Mo. 337, 149 S.W. 26, 29-30 (1912); cf. Christopher & Simpson Architectural Iron & Foundry Co. v. E. A. Steininger Const. Co., 200 Mo.App. 33, 205 S.W. 278, 285 (1918). Defendant argues that $75,000 was grossly in excess of plaintiff’s actual damages because plaintiff did not suffer any actual damages. His moving expenses to and from Independence were paid and he resumed his old job as soon as he returned to Oklahoma City. However, this employment was at a much lower salary.

In Southwest Engineering, supra, this court cited numerous cases discussing whether or not actual damages need be suffered. We observed:

“In United States v. J. D. Streett & Co., E.D.Mo., 151 F.Supp. 469, 472, Judge Harper, in upholding a claim for liquidated damages, states:
‘Although it is clear that a finding that a provision is one for liquidated damages requires that damages could be anticipated at the time of execution of the contract, whether actual damage did or did not occur or was not proved to have occurred does not prevent recovery.’

We affirmed upon appeal. J. D. Streett & Co. v. United States, 8 Cir., 256 F.2d 557.

“The late Judge Goodrich in United States v. Le Roy Dyal Co., supra, in a well-considered opinion dealing with numerous aspects of the liquidated damage issue, states:

‘If a provision for liquidated damages is upheld the fact that actual damage did or did not occur or was not proved to have occurred does not prevent the recovery of the stipulated sum. There is some dissent on this point, but the statement just made represents the great weight of decided cases.’ [3 Cir.] 186 F.2d 460, 462.

“We believe that the cases holding that the situation existing at the time of the contract is controlling in determining the reasonableness of liquidated damages are based upon sound reasoning and represent the weight of authority. Where parties have by their contract agreed upon a liquidated damage provision as a reasonable forecast of just compensation for breach of contract and damages are difficult to estimate accurately, such provision should be enforced. If in the course of subsequent developments, damages prove to be greater than those stipulated, the party entitled to damages is bound by the liquidated damage agreement. It is not unfair to hold the contractor performing the work to such agreement if by reason of later developments damages prove to be less or non-existent. Each party by entering into such contractual provision took a calculated risk and is bound by reasonable contractual provisions pertaining to liquidated damages.” Id. at 1002-1003 of 341 F.2d. (Our emphasis).

We find Missouri law supports this rationale. See Wilt v. Waterfield, 273 S.W.2d 290 (Mo.1954); Yerxa, Andrews & Thurston, Inc. v. Randazzo Macaroni Mfg. Co., 315 Mo. 927, 288 S.W. 20 (1926). In Manufacturers Casualty Ins. Co. v. Sho-Me Power Corp., 157 F.Supp. 681 (W.D.Mo.1957), the district court in applying Missouri law observed:

“When the damages are uncertain in nature or amount or are difficult of ascertainment and the amount agreed on is not extravagant and unreasonably disproportionate to the damages that actually resulted from a breach of contract, the contract provision is upheld.” Id. at 683.
But then added:
“Of course there can be no question of the right of parties to a contract to agree among themselves what the damages should be in the event of a breach. See the old case of Morse v. Rathburn, 42 Mo. 594, with its many subsequent citations. Hence, in determining whether a provision in a contract provides for a penalty or liquidated damages the intention of the parties in each case, measured from the time the contract was executed and not from hindsight after the performance is completed, is the test to be applied.” Id. at 684.

The early Missouri cases are discussed in Yerxa, supra at 33 of 288 S.W., where the court said:

“The question is one to be determined by the contract, fairly construed, and, in arriving at a determination, the courts will seek to arrive at the intention of the parties from a consideration of the contract as a whole, the situation of the parties, the subject-matter of the contract, and all the circumstances surrounding its execution, together with the ease or difficulty of measuring the breach in damages, and the magnitude of the stipulated sum, not only as compared with the value of the subject of the contract, but in proportion to the probable consequence of the breach.” (Our emphasis).

In May v. Crawford, 150 Mo. 504, 51 S.W. 693, 701 (1899), the court commented that one of the tests was:

“[A]nd the amount stipulated in the contract as the damages to be recovered is not ‘disproportionate to the probable damage,’ the courts will construe it to be liquidated damages.” (Our emphasis).

In Stein v. Bruce, 366 S.W.2d 732, 736 (Mo.App.1963), the Kansas City Court of Appeals observed:

“[I]t will be our duty to hold that the stipulated sum is for liquidated damages unless we determine it to be unreasonable in amount as a forecast of probable damages and disproportionate to the amount of damages that could probably result from the breach.” (Emphasis in original).

Williston observes:

“Although the mere fact that, as it turns out, the sum named exceeds the actual damage will not make it a penalty, since the reasonableness of the provision must be considered as of the date of the contract, yet the excessive size of the sum agreed upon may tend to show that the parties did not make a bona fide effort to fix the actual value of the injury.” 5 Williston on Contracts § 783, at 725-726 (3d Ed. 1961).

The Restatement of Contracts § 339, Comment (c) recites:

“Where the amount of loss or harm that has been caused by a breach is uncertain and difficult of estimation in money, experience has shown that the estimate of a court or jury is no more likely to be exact compensation than is the advance estimate of the parties themselves. Further, the enforcement of such agreements saves the time of courts, juries, parties, and witnesses and reduces the expense of litigation. In such cases, if it is not shown that the principle of compensation has been disregarded, the liquidation by the parties is made effective.”

We are, of course, required to follow Missouri law. Where uncertainty exists as to state law, consideration must be given to the rule which we believe the state court would in all probability follow under the facts presented. To measure the reasonableness of a liquidated damages stipulation by proof of the actual amount of damages incurred invokes hindsight judgment guided by events that actually occurred rather than by the intention of the parties at the time the contract was executed as to what the probable damages might be. Thus, we feel the early pronouncement of the Missouri Supreme Court that the reasonableness of damages should be measured by the probable estimate of such damage at the time of executing the contract should be the controlling principle. This is the principle adhered to by this court in Southwest Engineering, supra, and the proper rule we find applicable here. In light of this discussion, we find the sum of $75,000 not unreasonable. The clause is not a penalty and is enforceable.

Judgment reversed and remanded with directions to enter judgment for plaintiff in the sum of $75,000 and costs.

      . The Missouri courts have drawn a distinction between cases involving an employment contract for a definite term and those having no definite term. Only in the former is the burden of proving justification on the employer. See, e. g., Tolliver v. Standard Oil Co., 431 S.W.2d 159 (Mo.1968) ; Mad-dock v. Lewis, 386 S.W.2d 406 (Mo.), cert. denied, 381 U.S. 929, 85 S.Ct. 1569, 14 L. Ed.2d 688 (1965) ; Johnson v. Thompson, 251 S.W.2d 645, 649 (Mo.1952) ; Craig v. Thompson, 244 S.W.2d 37, 42 (Mo.1951). The present case involves a contract for a definite term, so that defendant bears the burden of establishing justification.

      . Jones ultimately obtained an FHA loan. Jones had earlier told Gaines that he hoped to get $30,000 to $40,000 an acre for his land, which was not possible under an FHA loan.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Roland Francis POITRA, Appellant.
    No. 73-1388.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 19, 1973.
    Decided Nov. 1, 1973.

      Leo Broden, Devils Lake, N. D., for appellant.
    Gary Annear, Asst. U. S. Atty., Fargo, N. D., for appellee.
    Before LAY, BRIGHT and WEBSTER, Circuit Judges.
   PER CURIAM.

Defendant Roland Francis Poitra, an Indian, was found guilty of taking $269.00 by force and violence from the person of Wilmer Charles St. Claire, an Indian. The alleged crime took place in Indian country, in the District of North Dakota. These acts were in violation of 18 U.S.C. § 1153 and § 2111.

Defendant complains of the following errors: (a) insufficiency of the evidence; (b) the refusal of the trial court to enjoin the prosecution from inquiring into the defendant’s past criminal record which, it is claimed, deterred the defendant from taking the stand; (c) the admission of hearsay testimony; (d) the erroneous admission of photographs; and (e) the restriction of proof as to the complaining witness’s motive in both cross-examination of the witness and rebuttal testimony of a witness who overheard a conversation of the complainant, St. Claire.

We have reviewed the entire record and find substantial evidence from which reasonable minds could conclude that the defendant was the assailant and stole the money. Credibility questions belong to the trier of fact.

Defendant has objected to the testimony of the witness, Roy Joe Belgarde, as to a conversation Belgarde had with the complaining witness, St. Claire, shortly after the assault. Belgarde testified as to what St. Claire excitedly related to him concerning the incident which had just occurred with the defendant Poitra. The conversation took place outside the presence of the defendant. We find this evidence admissible. The statement was made almost immediately after the event and was uttered in the stress of excitement. Under such circumstances, it is admissible as an exception to the hearsay rule. Cf. United States v. Fountain, 449 F.2d 629 (8th Cir. 1971), cert, denied, 405 U.S. 929, 92 S.Ct. 981, 30 L.Ed.2d 802 (1972). We have likewise reviewed the other evidentiary issues and find no prejudicial rulings here. Such questions rest within the discretion of the trial judge. There is no showing here of an abuse of that discretion.

Defendant’s complaint as to the trial court’s refusal to instruct the government not to use evidence of the defendant’s prior convictions for impeachment purposes if the defendant took the stand is also without merit. This court has previously passed on this issue and has rejected the claim. See United States v. Scarpellino, 431 F.2d 475 (8th Cir. 1970).

Judgment affirmed.


author: DONALD RUSSELL, Circuit Judge:

text:
    John Plummer STANLEY, Appellee, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellant (two cases). John Plummer STANLEY, Appellant, v. A. E. SLAYTON, Jr., Superintendent, Virginia State Penitentiary, Appellee.
    Nos. 71-1365, 71-1366, 72-1584.
    United States Court of Appeals, Fourth Circuit.
    Argued June 6, 1973.
    Decided Oct. 16, 1973.

      Ralph S. Spritzer, Philadelphia, Pa. [court-appointed] for John Plummer Stanley.
    Burnett Miller, III, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., and C. Tabor Cronk, Asst. Atty. Gen., on brief) for J. D. Cox and A. E. Slayton.
    Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

Convicted of armed robbery under three indictments charging separate robberies of the same ice cream store spread over a period of about a week, the petitioner, a Virginia prisoner, sought habeas relief, claiming that the identification testimony offered against him in his three trials was invalid constitutionally. After exhaustion of State remedies, he filed separately for relief in connection with each conviction in the District Court. In two of the cases (Numbers 71-1365 and 71-1366) the District Court granted relief but in the third case (Number 72-1584) it denied relief. Both the petitioner and the State have appealed. We reverse the granting of relief in Numbers 71-1365 and 71-1366, and affirm the denial of relief in Number 72-1584.

There is little dispute over the essential facts. High’s lee Cream Company in Petersburg, Virginia, was robbed on successive occasions on December 10, December 13 and December 18, 1967. Each time, two employees were on duty in the store. All employees who had been present at any one of the robberies testified at the trial involving any robbery at which they were present. All positively identified the petitioner as the robber. However, during the trial in two of the cases, store employees gave testimony about a pre-trial one-on-one identification of the petitioner made shortly after the robbery. At the time of such one-on-one identification the petitioner was a “suspect” but no actual charges had been made against him. He was at the time without counsel. In both of these cases, the District Court, relying on Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, granted relief. In the third ease, there was no testimony given during trial of any pre-trial identification of the petitioner. The petitioner asserts, though, that the in-court identifications given by the store employees at this trial were tainted by pre-trial improper “show-up” identifications. On this claim, the District Court held a hearing and, after weighing the evidence, concluded that the in-court identifications in the ease had an independent source and were not subject to attack. It accordingly dismissed the claim for relief in this case.

The decisions of the District Court in the three cases preceded Kirby v. Illinois (1972) 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. That case limited the proscription, both of uncounseled identifications and of testimony relating thereto, under the authority of Wade and Gilbert, to pre-trial identifications had after adversary judicial proceedings have been initiated against the defendant. All of the pre-trial identifications in question occurred before any charges were made against the petitioner and before indictment and the failure to have counsel did not therefore represent violations of petitioner’s Sixth Amendment rights under Kirby. This the petitioner concedes. But he argues that, though not invalid for want of counsel, the pre-trial one-on-one identifications were still invalid as violative of his due process rights. Because of such invalidity he contends, evidence of the pre-trial identifications were inadmissible in the two cases where the witnesses testified to such identifications. Accordingly, while the District Court may have been in error in grounding the grant of habeas relief in these two cases on want of counsel, petitioner argues its decision should be sustained on due process grounds. So far as the third case was concerned, his position was, that the District Court was clearly erroneous in concluding that the in-court identifications of the petitioner were based on an independent source. It is thus petitioner’s contention that the two cases in which the District Court granted him relief should be affirmed and the one in which he was denied relief the District Court should be reversed. We disagree.

The real issue in all three cases turns on whether the one-on-one pretrial identifications of the petitioner were violative of due process. Although pre-trial show-up identifications have been criticized under some circumstances, as the petitioner contends, there is no per se rule that they are violative of constitutional rights. There are, however, very definite due process standards, which such show-ups should meet, if they are to avoid a finding of constitutional invalidity. A show-up identification meets those due process standards, as established under the Fifth and Fourteenth Amendments if, taking into consideration the “totality of circumstances” surrounding it, it is found to be not “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny the defendant fundamental fairness. One of the show-up situations consistently found to satisfy these due process standards and not be a case of “undue suggestiveness” is the confrontation had promptly after the crime. Such a confrontation has been stated to have “great merit”. Thus, in United States v. Wilson (1970) 140 U.S.App.D.C. 220, 435 F.2d 403, 404-405, the Court said:

“Though suggestiveness is inherent in the situation, [a prompt showup identification] we think the case is not one of undue suggestiveness, in view of the countervailing considerations, that prompt, on-the-scene identifications are likely to promote fairness, by enhancing reliability of the identifications, and permit expeditious release of innocent subjects.”

But whether a particular show-up satisfies the requirements of a reliable prompt confrontation under due process depends on the consideration of a number of factors. These have been authoritatively stated to be “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

There has been some diversity in the decisions in applying these standards thus stated by Justice Powell in Neil v. Biggers. This is particularly true in connection with the time element. Certain courts have established an extremely strict requirement of promptness in holding the show-up confrontation. In Russell v. United States, supra (408 F.2d at 1284, n. 20), the Court stated that the rule approving one-on-one identifications covered only-confrontations held “within minutes of the witnessed crime.” In keeping with this ruling, that Circuit found in McRae v. United States (1969) 137 U.S.App.D. C. 80, 420 F.2d 1283, evidence of a show-up identification held four hours after the crime inadmissible. On the other hand, the same Court in United States v. Cunningham (1970) 141 U.S. App.D.C. 177, 436 F.2d 907, 908, held that evidence of a show-up held an hour after the crime was acceptable. Other Courts have not been so rigid in applying the time standard. In Kirby, the show-up occurred the next day after the robbery; in United States v. Quarles (4th Cir. 1967) 387 F.2d 551, 555, it took place six days after the robbery; in United States Ex Rel. Carnegie v. MacDougall (2d Cir. 1970) 422 F.2d 353, cert, denied 398 U.S. 912, 90 S.Ct. 1711, 26 L.Ed.2d 74, the show-up was three months after the crime; and in United States Ex Rel. Rutherford v. Deegan (2d Cir. 1969) 406 F.2d 217, cert, denied 395 U.S. 983, 89 S.Ct. 2145, 23 L.Ed.2d 771, the show-up was eleven days after the crime. In all these cases, evidence of the show-up was found admissible. Another factor, which it was suggested in argument in these cases is important, concerns the place of confrontation. The petitioner would regard whether the confrontation takes place on-the-scene or at police headquarters to be significant. The decisions, however, do not apparently regard that fact to be decisive. In Neil v. Biggers, Kirby v. Illinois, United States v. Frazier, Roper v. Beto and Johnson v. United States, the confrontations were all “station house” identifications and they were found admissible under the Stovall rule. In United States Ex Rel. Cummings v. Zelker (2d Cir. 1972) 455 F.2d 714, 715-716, cert, denied 406 U.S. 927, 92 S.Ct. 1800, 32 L. Ed.2d 128 and Bates v. United States (1968) 132 U.S.App.D.C. 36, 405 F.2d 1104, 1106, the suspect was in a police car when the confrontation occurred. After all, whether on-the-scene or at police headquarters, the suspect is equally in custody and restrained. It is the fact that he is in police custody that is generally thought to provide the indicia of suggestiveness. The circumstances of the confrontation, the period of observation of the suspect, the reliability of the identification as indicated by the character of the witness’ vision, are, also, to be examined, as our recent decision in Smith v. Coiner (4th Cir. 1973) 473 F. 2d 877, illustrates. In sum, what all these cases demonstrate is that, in weighing the several relevant factors suggested by Neil v. Biggers, Courts will recognize that “[D]ue process does not require that every pretrial identification of a witness must be conducted under laboratory conditions of an approved lineup” or show-up, that every case must be resolved on its own unique facts, and that, where after a weighing of all relevant facts surrounding the identification, including the time and place of confrontation, it is concluded that the show-up was not “unnecessarily suggestive”, testimony of the show-up identification is admissible. And we think this is a sound result, which will not invalidate what is, when properly used, a useful identification procedure simply because of the difficulties of applying the relevant rule as stated in Stovall to the facts of a particular case.

Measured by the above standards, the show-up identifications in the two cases where relief was granted by the District Court fully satisfied the requirements of due process and evidence relating thereto was clearly admissible. Both witnesses at the show-up had seen the petitioner on two occasions. These were not fleeting moments of a “few seconds” as in Smith; they were for extended periods during which it was claimed the petitioner robbed the store where the witnesses were in charge. Two of the robberies took place in the daytime when there was no lack of light. The other occasion on which one of the witnesses saw the robber was at night but the store was well illuminated. Both witnesses looked the robber in the face on both occasions for some time. The occasions themselves were events calculated to be impressed on the witnesses’ memory. Two robberies within about a week by the same person would normally give the witness a vivid memory picture. After the robbery, both witnesses gave fairly definite descriptions of the robber. There was little doubt of the firmness of the identification in the minds of the witnesses. When the robber entered the store at the time of the third robbery, one of the witnesses exclaimed spontaneously that he [meaning the robber] was “here again”. After one of the earlier robberies, one or both of the witnesses had been taken to police headquarters to view another suspect under circumstances similar to those at the confrontation with the petitioner. They refused unhesitatingly to identify that suspect who was thereupon released. This circumstance demonstrated that the mere fact that a suspect was in police custody at police headquarters was not likely to induce them to make an improper identification. They were acting on the basis of their vivid recollection, vivid recollection of an event that occurred, it would seem, within the hour. Viewing the petitioner separately and without any knowledge of whether the other had identified the petitioner, both were positive and unequivocal in their identifications. The identifications took place promptly after the robbery on the 18th, at which both witnesses had been present. The robbery occurred at 10:40 in the morning. Mrs. Weese testified that her identification was made on that same morning, which would have meant that it took place within an hour after the robbery. The other witness had appeared at the show-up and made her identification earlier — that is, within less than an hour. These identifications were well within the strict rule of promptness as followed by the District of Columbia Circuit and by other Circuits. These show-up identifications met fully the standards established and were admissible.

The petitioner, however, goes beyond the argument that the show-up testimony violated due process and argues that, even if due process be satisfied in these cases, this Court should use these cases as a vehicle for the adoption of “a rule requiring the exclusion of testimony recounting all ‘show-up’ identifications” [petitioners’s italics]. He purports to find authority for this in Neil v. Biggers. In support of his position, he points to the language of the Court in that casé, where it is stated that, if a per se rule of exclusion for “unnecessary suggestiveness” were to be adopted, a purpose would be “to deter the police from using a less reliable procedure where a more reliable one may be available * * (409 U.S. at 199, 93 S. Ct. at 382). Cf., Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. He would find in this comment a suggestion that such a per se exclusionary rule was in order in the case of one-on-one identifications because, according to his contention, a line-up is always “more reliable” than a show-up. The basic flaw in this'argument is that a prompt show-up has not been found to be a “less reliable procedure”, provided the “totality of circumstances” conforms to the rule promulgated in Stovall; nor did Neil v. Biggers so hold. When employed under circumstances not “unreasonably unreliable”, a show-up identification has been approved consistently, has been declared to have “great merit”, “insure[s] accuracy”, and “promote [s] fairness” and enhances “reliability of the identifications”. In fact, Russell v. United States, supra, dealt with this very point on the reliability of a show-up vis-a-vis other procedures. It stated: “ * * * Stovall v. Denno did not erect a due process barrier against all unreliable identifications; it requires exclusion only of evidence which could and should have been obtained by procedures less conducive to unreliability.” (408 F.2d at 1285). And it proceeded to find, as we have found in these cases, that the show-up identification evidence was not subject to exclusion because it was obtained by a “less reliable” procedure, i.e., a show-up. Another reason suggested by the petitioner to justify the promulgation of his proposed rule is that “lower courts have experienced some difficulty in ascertaining the proper method of applying Stovall’s ‘totality’ test.” It is by no means certain that in applying Stovall the “lower courts have experienced” any greater difficulty than in applying many other due process rules. Nor does it seem that a rule that “promote[s] fairness” and enhances “reliability of the identifications” should be proscribed simply because it forces the Courts to review and weigh the evidence. Finally, we do not read, as does the petitioner, the opinion in Neil as intimating or suggesting the adoption of a novel rule of such rigidity as that advocated by the petitioner. Even the editor of the Note in 73 Col.L.Rev. 1168, 1181, who was favorable to the argument of the petitioner, concluded his comment on Neil with the observation that the opinion in that case may perhaps have indicated “an attitude hostile to the exclusion of out-of-court identifications in any but the grossest of circumstances; the intention may have been to undercut Stovall. If this is so, it is likely that the Biggers rule, mandating the use of external factors in determining whether an out-of-court identification violates due process, will be extended to post-Stovall cases.” We do not find in Neil any of the intimations of intention that the editor noted any more than we found in it a suggestion justifying the promulgation of the rule the petitioner proposed; on the contrary, we found in Neil a faithful adherence to and a firm reaffirmance of Stovall and its “totality” rule.

What petitioner is really arguing for is a rule that would prescribe a line-up as the only permissible identification procedure available to the police in ferreting out crime. He contends a line-up is always more reliable than a show-up. While it may be conceded that a line-up is admittedly more reliable than a show-up in most cases, it is not necessarily so in a prompt, quick show-up held under proper circumstances. And this is the basis of the innumerable cases in’ which prompt confrontations have been found acceptable. It is thus manifest that the fundamental theory on which this phase of petitioner’s argument rests is unsupportable.

Finally, the petitioner argues that in Smith v. Coiner, supra (473 F.2d 877), we actually adopted the per se exclusionary rule urged by him. This argument misconceives the reasoning on which Smith rests. The test of “totality of circumstances”, as that term has been used in the cases, was there applied. The show-up was not invalidated merely because a line-up in that case would have been more reliable. It recognized that a show-up confrontation which “was part of an on-the-scene immediate investigation” was generally recognized as reliable and was not objectionable. But, after a careful sifting of the facts in that case, it concluded with the finding that, “[W]e think the requisite degree of reliability is absent here.” The rationale for this conclusion was painstakingly stated in the opinion. The confrontation took place five hours after the crime. The prosecutrix “saw her assailant for only ‘two seconds’ by the light of a flashlight.” She had “impaired vision” and “was not wearing her glasses at the time.” She gave at best only a hazy description of her assailant prior to the show-up; in fact, about the only description she gave was that he was “white”. It is accordingly manifest that the Court was applying faithfully the “totality of circumstances” test established by Stovall and the result reached was that, “[W]hen we apply the totality of circumstances test here, we conclude that Smith was denied due process of law.”

There remains for decision the claim that the in-eourt identifications in all three cases were tainted by prior improper show-up identifications. From what has already been said, the claim of improper show-ups cannot be sustained and there was thus no taint to the in-court identifications. Moreover, ' the District Court concluded — correctly in our opinion- — -that even had there been taint, there was an independent source for the in-court identifications.

In short, we find no basis either on due process grounds or on policy considerations for finding the show-up identifications in these cases “unnecessarily suggestive.” Accordingly, the admission of testimony relating to such identifications was not error.

It follows that the judgments of the District Court in Nos. 71-1365 and 71-1366 granting habeas relief are reversed, with directions to dismiss the petitions, and the judgment in No. 72-1584, denying habeas relief is affirmed.

      . The State alleges that petitioner has not exhausted his State remedies in these cases. Because of the result reached we have accepted the contention of the petitioner on this point.

      . December 10— Mrs. Virginia Beamer
      Mrs. Mary Weese
      December 13— Mrs. Elizabeth Keeton
      Mrs. Lucille Phillips
      December 18— Mrs. Mary Weese
      Mrs. Lucille Phillips

      . In United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the Supreme Court held that an in-court identification of a defendant by a witness to a crime must be excluded from evidence if such witness had previously identified the defendant while defendant was in police custody and without counsel, unless it could be shown that such in-court identification had an independent origin or constituted harmless error. Wade was amplified in Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L. Ed.2d 1178, which held that trial testimony by witnesses recounting pre-trial identifications of the defendant made while defendant was without counsel must be excluded from evidence, whether or not such testimony had an independent source. Both decisions were based upon the Sixth Amendment guarantee of a right to counsel at any critical stage of a prosecution.

      . Neil v. Biggers (1972) 409 U.S. 188, 198, 93 S.Ct. 375, 382, 34 L.Ed.2d 401:
      “But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.”

      . The term is “unnecessarily suggestive” in Stovall v. Denno (1967) 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and “impermissibly suggestive” in Simmons v. United States (1968) 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247. Both are used in Neil v. Biggers, supra, at 197 and 198, quoting Simmons and Stovall. It would seem that the two phrasings represent different articulations of the same requirement and should be so applied. See United States Ex Rel. Phipps v. Follette (2d Cir. 1970) 428 F.2d 912, 914-915, cert, denied 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146; Note, Identification : Unnecessary Suggestiveness May Not Violate Due Process, 73 Col.L.Rev. 1168, 1171, n. 29.

      . Stovall v. Denno, supra, at 302. The “two-pronged test”, outlined later in Phipps, supra, and established by Stovall was summarized in the phrase “unnecessarily unreliable” by Judge Leventhal in his concurring opinion in Clemons v. United States (1968) 133 U.S.App.D.C. 27, 408 F.2d 1230, 1250, n. 1, cert, denied 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567.

      . The rule is well stated in the recent case of Mock v. Ross (6th Cir. 1972) 472 F.2d 619, 621, cert, denied 411 U.S. 971, 93 S.Ct. 2165:
      “There is no prohibition against a viewing of a suspect alone in what is called a ‘one-man showup’ when this occurs near the time of the alleged criminal act; such a course does not tend to bring about mis-identification but rather tends under some circumstances to insure accuracy.”
      This is a restatement of the rule as expressed by then Judge Burger in the ofteited case of Bates v. United States (1968) 132 U.S.App.D.C. 36, 405 F.2d 1104, 1106.

      . United States v. Washington (1970) 144 U.S.App.D.C. 338, 447 F.2d 308, 312.

      . See, also, Russell v. United States (1969) 133 U.S.App.D.C. 77, 408 F.2d 1280, 1284, cert, denied 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245:
      “Balancing all the doubts left by the mysteries of human perception and recognition, it appears that prompt confrontations in circumstances like those of this case will ‘if anything promote fairness, by assuring reliability * * *.’ This probability, together with the desirability of expeditious release of innocent suspects, presents ‘substantial countervailing policy considerations’ which we are reluc-taut to assume the Supreme Court would reject.”

        See, also, Wise v. United States (1967) 127 U.S.App.D.C. 279, 383 F.2d 206, 209, cert, denied 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164.
      The rationale of this rule was stated in Note, Pre-trial Identification Procedures— Wade to Gilbert to Stovall: Lower Courts Bobble the Ball, 55 Minn.L.Rev. 779, 788 (1971) ; Note, Identification: Unnecessary Suggestiveness May Not Violate Due Process, 73 Col.L.Rev. 1168, 1171, n. 30; Sobel, Assailing the Impermissible Suggestion: Evolving Limitations on the Abuse of Pre-Trial Identification Methods, 38 Brooklyn L. Rev. 261, 294 (1971).
      For illustrative cases in which show-up identification testimony has been received, see: United States v. Frazier (4th Cir. 1969) 417 F.2d 1138, 1139, cert, denied 397 U.S. 1013, 90 S.Ct. 1245, 25 L.Ed.2d 427, reh. denied 398 U.S. 945, 90 S.Ct. 1850, 26 L.Ed.2d 284; United States v. Quarles (4th Cir. 1967) 387 F.2d 551, 556, cert, denied 391 U.S. 922, 88 S.Ct. 1815, 20 L.Ed.2d 659; Royce v. Moore (1st Cir. 1972) 469 F.2d 808, 812, n. 5; United States Ex Rel. Gomes v. State of New Jersey (3d Cir. 1972) 464 F.2d 686, 688; Mock v. Ross supra (472 F. 2d at 621; Roper v. Beto (5th Cir. 1971) 454 F.2d 499, 502-503; Stidham v. Wingo (6th Cir. 1971) 452 F.2d 837, 841; Hemphill v. United States (1968) 131 U.S.App.D.C. 46, 402 F.2d 187, 192; Johnson v. United States (8th Cir. 1966) 362 F.2d 43, 47.

      . Neil v. Biggers, supra, at 199 (409 U.S.), 93 S.Ct. at 382.

      . In this case, the Court said (420 F.2d at p. 1290) :
      “ * * * At some point the nexus of time and place between offense and identification must become too attenuated to outweigh the admitted dangers of presenting suspects singly to witnesses. We conclude that this point was reached, and more, in this case.”

      . In Kirby, the issue, as stated by the Court, was:
      “ * * * In the present case we are asked to extend the Wade-Gilbert per se exclusionary rule to identification testimony based upon a police station showup that took place before the defendant had been indicted or otherwise formally charged with any criminal offense” (406 U.S. at p. 684, 92 S.Ct. at p. 1879).

      . See, also, Note, No Panacea: Constitutional Supension of Eyewitness Identification, 62 J. of Crim.L. & Police Science, 363 (1971) :
      “The extent of which the showup may endanger the reliability of an identification depends upon the circumstances of the confrontation and upon the opportunity the witness had to observe the offender.”

      . United States v. Davis (4th Cir. 1969) 407 F.2d 846, 847.

      . United States v. Washington, supra (447 F.2d at 312).

      . Bates v. United States, supra (405 F.2d at 1106).

      . United States v. Wilson, supra (435 F.2d at 404-5).

      . See, also, Jackson v. United States (1969) 134 U.S.App.D.C. 18, 412 F.2d 149, 153:
      “We are loath to encourage, or tolerate, individual confrontations such as occurred here. ‘The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.’ Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). But such situations must be judged by the ‘totality of the circumstances surrounding it * * *.’ ”
      After considering the circumstances of the show-up identification in that case, the Court concluded that the show-up was acceptable.