American Cooler Co. v. Fay & Scott

• Decision Date: 23 August 1937
• Citation: 20 F. Supp. 782
• Parties: AMERICAN COOLER CO., Inc., v. FAY & SCOTT.
• Court: U.S. District Court — District of Maine

20 F. Supp. 782

AMERICAN COOLER CO., Inc., v. FAY & SCOTT.

District Court, D. Maine, N. D.

August 23, 1937.

Wm. R. Pattangall and Robt. B. Williamson, both of Augusta, Me., for plaintiff.

Crosby & Crosby, of Dexter, Me., and James M. Gillin, of Bangor, Me., for defendant.

PETERS, District Judge.

This case having been tried before a jury with a verdict for defendant comes before the court upon the motion of the plaintiff to set aside the verdict and for a new trial on the grounds that the verdict was against the law of the case and the weight of the evidence.

There is no special difference of opinion between counsel as to the rules of law governing the consideration and the decision of such a motion, nor could there well be in view of the fact that the law is well settled by many decisions in both the federal and state courts.

The verdict was arrived at after a careful trial, with able counsel participating, with no apparent errors and with instructions to the jury which were not excepted to. There is no reason to think that the jury failed to exercise a deliberate and unbiased judgment or that it was influenced by any prejudice, unless such can be inferred from the verdict alone. There was a direct and irreconcilable conflict of testimony. The jury, after apparently adequate instructions, including the rule as to burden of proof, adopted the view of the facts as testified to by the witnesses for the defendant. The court or another jury might take another view of the matter, but under our procedure that is not the question. It is not sufficient ground for a new trial that a verdict is merely against the preponderance of the testimony. It must be so manifestly and palpably against the evidence in the case as to compel the conclusion that the verdict is contrary to right and justice. Judge Lurton, in the case of Mt. Adams & E. P. Inclined R. Co. v. Lowery (C.C.A.) 74 F. 463, 465, 473, said:

"Where the evidence submitted to the jury is such as to render the issue doubtful, a new trial will not be granted, even though the verdict is against the apparent weight of the evidence. Brown v. Wilde, 12 Johns. N.Y. 455; Stryker v. Bergen, 15 Wend. (N.Y.) 490, 491."

The following is from the opinion of the Court in Donohue v. Dykstra (D.C.) 247 F. 593, 594, referring to and following the Mt. Adams Case: "It is, of course, well settled that if there is any real conflict in the testimony, and there is any substantial evidence to support the verdict found, such verdict should not be set aside by the Court, even if the latter would have reached a different verdict from that of the jury on the same evidence."

The Supreme Judicial Court of Maine stated the rule as follows in Hewey v. Nourse, 54 Me. 256: "To justify the Court in setting the verdict aside, for the cause alleged in the motion, there must be such a manifest weight of evidence against the verdict, as to render it clear that the jury either misapprehended the evidence, or were guilty of gross misconduct."

Where there is a conflict of testimony, it is presumed that the jury gave the various items of testimony their real worth in marshaling the probabilities. A new trial will not be granted where to do so would amount to a substitution of the judgment of the court for that of the jury. Harmon v. Cumberland County P. & L. Company, 124 Me. 418, 130 A. 273; Inhabitants of Somerville v. Inhabitants of Smithfield, 126 Me. 511, 140 A. 195; Lawler v. Spellman, 118 Me. 484, 105 A. 715.

The Supreme Court in the case of Pleasants v. Fant, 22 Wall. 116, 122, 22 L.Ed. 780, in speaking of the duty of the court in its relation to the jury to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from impulse or passion or prejudice, or from any other violation of the lawful rights of the parties in the conduct of a trial, said:

"In the discharge of this duty it is the province of the court, either before or after the verdict, to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor. Not whether on all the evidence the preponderating weight is in his favor, that is the business of the jury, but conceding to all the evidence offered the greatest probative force which according to the law of evidence it is fairly entitled to, is it sufficient to justify a verdict? If it does not, then it is the duty of the court after a verdict to set it aside and grant a new trial."

There is no ground for a claim that the jury violated any instructions as to the law or that it was left in ignorance as to any rules of law pertinent to the case. If the jury had a right to accept the story of the defendant's witnesses as to the facts surrounding the contract in suit, the verdict could have been properly rendered for the defendant.

The general background of the case was this: The plaintiff, a New York corporation, was a broker or dealer in beer faucets, among other things; buying from manufacturers and selling to the trade. The defendant, a corporation doing business in Maine, ran a machine-shop business, usually dealing in heavier articles than faucets, for the manufacture of which its plant and facilities were not well adapted without the installation of additional equipment. Internally it was what might be called a one-man company, as Mr. Fay, the president, was and had been for years the sole active manager of all its affairs. His brother-in-law, Mr. Plouff, was vice president and active in the business, but in all matters of consequence subordinate to Mr. Fay.

Business being dull, and Mr. Fay in ill health, Mr. Plouff started out to get some work for the shop, and, without the knowledge of Mr. Fay, had their cost engineer, Greene, make figures on beer faucets, and with him went to New York, met the officers of the plaintiff with whom Mr. Plouff had had correspondence in the name of his company, and gave them a figure of $1.08, each, for beer faucets such as plaintiff wanted to buy.

The plaintiff in New York gave Plouff a written order entitled, "Purchase order," for 25,000 faucets at that price. The order was dated December 22, 1936, directed to Fay & Scott, Dexter, Me., carried the printed words, "Please enter our order as follows," describing articles, price, and terms, and was signed by the treasurer of the plaintiff.

Plouff and Greene returned to Dexter, but as various holidays intervened, the transaction did not come to the attention of Mr. Fay until Monday, December 28th. On that day Plouff wrote in the name of Fay & Scott, by himself as vice president, a letter to the plaintiff as follows:

"American Cooler Co., 37 W. 19th St. New York, N. Y.

"Gentlemen: We received this day, a box of equipment for our examination and quotation; we will give this immediate attention.

"We are holding up the order for 25,000 #1201...