Adams v. Herbert
| Decision Date | 11 March 1963 |
| Citation | 188 N.E.2d 577,345 Mass. 588 |
| Parties | George S. ADAMS v. Richard HERBERT. Richard HERBERT v. George S. ADAMS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Harry Zarrow, Worcester, for Herbert.
John F. Driscoll, Worcester, for Adams.
Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.
The litigation, consisting of two cross actions in contract, followed a dispute which arose from the shipment of five carloads of bananas by Adams (the seller) to Herbert (the buyer) during the summer of 1946. The seller's action as plaintiff, commenced in October, 1949, was on an account annexed for goods sold and delivered. The buyer's action as plaintiff, commenced in April, 1950, was for breach of warranty. The jury returned a verdict for the buyer as a party defendant and for the seller as a party defendant. Our primary concern is the action brought by the seller against the buyer.
For the purpose of making a decision on the merits we treat the case as being properly before us on the only exception saved. That exception was taken by the defendant buyer when the judge under leave reserved entered a verdict for the plaintiff seller following the verdict for the defendant buyer.
The bill of exceptions presents no questions as to the admissibility of evidence, Cooke v. Plaisted, 176 Mass. 374, 383, 57 N.E. 687, or as to the sufficiency of pleadings, Kagan v. Levenson, 334 Mass. 100, 106, 134 N.E.2d 415, 62 A.L.R.2d 704, and cases cited, or of variance, P. A. Dolan Co. v. P. S. Thorsen Co. of Mass., 324 Mass. 376, 377, 86 N.E.2d 652, and cases cited. It does not appear that any of these questions was raised at the trial.
The test to be applied to determine the propriety of the entry under leave reserved of a verdict for the plaintiff is the same as that which would apply if the seller as plaintiff had moved for a directed verdict in his favor. Morton v. Dobson, 307 Mass. 394, 396, 30 N.E.2d 231, and cases cited. 'It is held in this Commonwealth that a verdict will not be directed for a party unless the evidence when construed most favorably to the opposite party would not warrant a contrary verdict, or unless evidence by which such opposite party is bound would make impossible a verdict in his favor.' Mansfield v. Lang, 293 Mass. 386, 393, 200 N.E. 110, 114; Reardon Importing Co. v. Security Trust Co., 318 Mass. 304, 307, 61 N.E.2d 535. Pursuant to this salutary rule, we state the evidence in its aspect most favorable to the defendant buyer. Whatever tends to contradict that aspect, or to support the contentions of the seller on disputed facts, will be omitted. See Moore v. Town of Amesbury, 268 Mass. 462, 465, 167 N.E. 663. We include facts admitted by the buyer and testimony by which the buyer was bound.
The evidence was mainly oral testimony and in several material particulars was conflicting. The buyer, a Pittsfield, Massachusetts, fruit dealer, agreed to buy from the seller, a banana importer, carload lots of bananas, F. O. B. Miami, Florida, at eight cents a pound. The seller was to load the bananas on the trains, and to select, instruct, and send along messengers who were to ride with the trains to New York and do the icing en route. The bananas were to arrive 'green' at Pittsfield. The buyer was to pay the freight charges and for the services of...
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...reasonable-man test, for a verdict cannot there be sustained when reasonable men could not reach that verdict.) Massachusetts-Adams v. Herbert, 345 Mass. 588, 188 N.E.2d 577; cf. West v. Molders Foundry Co., 342 Mass. 8, 171 N.E.2d 860; Hannon v. Hayes-Bickford Lunch System, 336 Mass. 268, ......
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