Bank of Italy v. F. Romeo & Co., Inc.

Decision Date05 March 1923
Docket Number3804.
Citation287 F. 5
PartiesBANK OF ITALY v. F. ROMEO & CO., Inc.
CourtU.S. Court of Appeals — Ninth Circuit

Louis Ferrari, of San Francisco, Cal., for plaintiff in error.

O. K Cushing, Charles S. Cushing, William H. Gorrill, and Delger Trowbridge, all of San Francisco, Cal., for defendant in error.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

MORROW Circuit Judge.

The Bank of Italy, a corporation of the state of California, was plaintiff in the court below in an action against the defendant, F. Romeo & Co., Incorporated, a corporation of the state of New York. The parties will hereinafter be designated plaintiff and defendant as in that court.

The action was to recover the sum of $5,743.63 and interest on a draft drawn May 2, 1919, by F. A. Mennillo of Los Angeles on F. Romeo & Co. of New York City.

The draft was guaranteed by the indorsement in writing of F. A Mennillo, and by the latter transferred to the plaintiff, the Bank of Italy. There was no written acceptance of the draft by F. Romeo & Co. The case was tried before the court and a jury, and resulted in a verdict and judgment in favor of the defendant. Plaintiff brings error.

The Uniform Negotiable Instrument Law of California (Stats. of California 1917, pp. 1531, 1552) provides, in section 3213 that--

'The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writing and signed by the drawee. It must not express that the drawee will perform his promise by any other means than the payment of money.'

It also provides, in section 3216, that--

'An unconditional promise in writing to accept a bill before it is drawn is deemed an actual acceptance in favor of every person who, upon the faith thereof, receives the bill for value.'

To escape the effect of this statute and the general statute of frauds, requiring that such an acceptance should be in writing, the plaintiff alleged, in its complaint, that, in consideration of the discount of the draft by the plaintiff the defendant promised and agreed to pay the draft at maturity. The defendant, in its answer, denied that it had made any such promise or agreement, and, as a further defense, alleged that the transaction to which the draft related was the shipment, prior thereto, by F. A. Mennillo of a quantity of olives to the city of New York, which the defendant agreed to purchase if, upon examination by the defendant at defendant's warehouse in the city of New York, said olives should prove to be of good quality and condition, as provided in a certain contract of purchase theretofore entered into between the said defendant and F. A. Mennillo, and warranted by said F. A. Mennillo; that if, upon such an examination, the olives were found of good quality and condition, defendant would accept a draft for such purchase in the sum of $5,743.63, payable at 60 days' sight.

It is further alleged by the defendant that said olives, upon arrival in New York, were examined by defendant, F. Romeo & Co., and found to be and were not of good quality and condition, as required by said contract of purchase, but were spoiled and unfit for human consumption, and defendant, F. Romeo & Co., therefore and thereupon refused to accept said olives and immediately notified said F. A. Mennillo and plaintiff that said olives were not of good quality and condition, as required by said contract of purchase, but were spoiled and unfit for human consumption, and said defendant F. Romeo & Co., therefore and thereupon refused to accept said draft.

The issue thus presented by the pleadings was a question of fact whether there was an unconditional promise on the part of the defendant to pay the draft in New York upon its maturity, or whether the promise to accept the draft was conditioned upon the examination of the olives by the defendant upon their arrival in New York, and upon such examination the olives proved to be of good quality and in a satisfactory condition.

The court submitted this question to the jury for its determination, and the jury, by its verdict, found for the defendant. It is contended by the plaintiff that the verdict of the jury was not sustained by the evidence.

That question, if it be a question, is not open to review on this record. Plaintiff, at the close of the case, did not move the court for a verdict in its favor, or request the court to instruct the jury to render a verdict in its favor, or in any manner request the court to take the case from the jury on the ground that there was not sufficient evidence to justify the submission of the case to the jury.

Where a party claims to be entitled to a verdict as a matter of law, he must make that contention in the trial court in order to preserve his right to make that claim in the appellate court.

The cases in the federal courts in support of this rule are numerous.

In Pennsylvania Casualty Co. v. Whiteway, 210 F. 782, 784, 127 C.C.A. 332, 334, this court said:

'When an action at law is tried before a jury, their verdict is not subject to review unless there is absence of substantial evidence to sustain it, and even then it is not reviewable unless a request has been made for a peremptory instruction, and an exception taken to the ruling of the court. * * * (Citing numerous cases.) There was no such request or motion made in the case in hand, and the judgment of the court below is therefore conclusive of the facts determined thereby.'

See, also, Brolaski v. United States (C.C.A.) 279 F. 1, 2; and Pabst Brewing Co. v. E. Clemens Horst Co. (C.C.A.) 264 F. 909, 911; also, the following cases in other circuits: City of Lincoln v. Sun Vapor Street-Light Co. of Canton, 59 F. 756, 761, 8 C.C.A. 253; U.S. Fidelity & Guaranty Co. v. Board of Commissioners, 145 F. 144, 151, 76 C.C.A. 114; Sun Publishing Co. v. Lake Erie Asphalt Block Co., 157 F. 80, 82, 84 C.C.A. 584; Mexico International Land Co. v. Larkin, 195 F. 495, 496, 115 C.C.A. 405; Royce v. Delaware, Lackawanna & Western Railroad Co., 203 F. 467, 468, 121 C.C.A. 591; Wear v. Imperial Window Glass Co., 224 F. 60, 63, 139 C.C.A. 622.

No exception was taken to the verdict, and the bill of exceptions does not contain any specifications of insufficiency of the evidence to justify the verdict.

It has been held by this court that the assignment of errors must specifically state wherein the evidence is insufficient to justify the submission of the case to the jury.

In Doe v. Waterloo Mining Co., 70 F. 455, 461, 17 C.C.A. 190, 196, this court held that--

'Rule 11 of this court requires...

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