Calaf v. Fernandez

• Decision Date: 05 January 1917
• Docket Number: 1190.
• Parties: CALAF et al. v. FERNANDEZ.
• Court: U.S. Court of Appeals — First Circuit

239 F. 795

CALAF et al. v. FERNANDEZ.

No. 1190.

United States Court of Appeals, First Circuit.

January 5, 1917

Francis H. Dexter and Charles Hartzell, of San Juan, Porto Rico (Jacobs & Jacobs, of Boston, Mass., and Nava & Dominguez, of San Juan, Porto Rico, on the brief), for plaintiffs in error.

E. B Wilcox, of San Juan, Porto Rico, and N. B. K. Pettingill, of Tampa, Fla. (Ben A. Matthews, of New York City, on the brief), for defendant in error.

Before DODGE and BINGHAM, Circuit Judges, and ALDRICH, District Judge.

ALDRICH District Judge.

This case is one in which the plaintiff below sought to recover damages for alleged breach of a contract for the sale of something like 30,000 acres of land in the island of Santo Domingo, for $30,000, and for $5,000 in addition for expenses. The contract contemplated that one party should go out and buy lands, to be located at the places marked in the map of the Republic of San Domingo with the name of 'Quemados,' 'Las Charcas,' and 'Payabo,' and that the other party should take conveyances of the same under circumstances indicated by the provisions of the contract. It was clearly a contract in which the seller was not undertaking to sell what he at the time owned, but one under which the party contracting to sell was to go out and buy lands and convey them to the party contracting to take them.

The contract in question is in the Spanish language, and some of its provisions have been translated in the arguments and in the record in different ways, and particularly the words 'ofrescan completa garantia,' which appear in clause 4 of the contract. One version is that the Spanish words quoted mean that the deeds to the property are to be in good condition and safe; another that they mean, in the sense of the contract, that the titles be safe, and such is the version of Judge Hamilton; and another, which is the version of counsel for the plaintiffs in error, that the literal translation is, 'shall offer complete warranty.

' The latter, according to the recent Spanish-English Dictionary published by D. Appleton & Co., New York, 1916 would seem to be closer to a literal translation than any of the others, because the word 'garantia' has reference to warranty, guaranty, and security. But, after all, the strict literal meaning would not necessarily be controlling because, under reasonable interpretation, it would be the sense in which the parties used the word 'garantia' in connection with the other words in clause 4 of the contract, and this question would be influenced by the situation of the property, the relations of the parties, and their intentions. It is important, however, to ascertain, through interpretation, or other proper means, whether the parties were making a contract with reference to deeds embodying the usual covenants of warranty, or whether they had in mind that the seller was obligating himself to show a strictly legal chain of title.

It will become necessary to refer again to clause 4 of the contract, and to the meaning of these words as used by the parties to convey intentions and establish obligations in respect to the lands about which the controversy arises.

The case was first tried by jury, and, if we are to accept the statement of counsel, the instructions were to the effect that the title to the land in controversy was good. There was a verdict for $21,080, and judgment thereon. Subsequently, and at the same term, the defendants below moved for a new trial; the principal contention being that the court erred in saying that the title was good, because there were no sufficient proofs to warrant it. Later, in the same term, the verdict and judgment were vacated and a new trial granted. These orders were admittedly general and for a new trial.

On March 5, 1914, and during the term, the plaintiff moved for a reconsideration of the previous order in respect to a new trial, which was not acted upon during the term, but was carried along, if at all, by virtue of a general order entered on the last day:

'That any and all matters not finally determined or settled, and rights which should, or may, be lost by the lapsing of the term, are hereby continued until the next term, to all intents and purposes as if the members and titles of the same were herein set out.'

During the next term, and on May 16, 1914, an order was entered granting a motion to reconsider the order for a new trial, and on the same day it was further ordered-- indeed, it was a part of the order granting the motion to reconsider-- that:

'The order granting a new trial is modified by granting the same upon the condition that said new trial shall be limited to a retrial of titles of the land in question.'

On December 15, 1915, the plaintiff moved for a modification of previous orders, to the end that the judgment should be stayed, instead of set aside, until the determination of questions at the present hearing. This motion was denied; the court saying in the course of an opinion, in explanation of such denial, that the previous action of the court setting aside the judgment and the verdict left in the case only the pleadings.

The plaintiffs in error now urge this statement in respect to the pleadings in favor of the proposition that the verdict was set aside generally. That proposition is perfectly correct so far as the original order was concerned, and, although the opinion was filed May 3, 1915, we must accept that observation as having reference to an earlier stage of the proceedings and to the status of the verdict under the general order setting aside the judgment and the verdict, and before the order modifying and limiting the scope of the new trial, because in the same opinion, in its concluding paragraph, Judge Hamilton says:

'My construction of the situation is that the verdict was set aside in part and still remains in force as to everything except the matter of title.'

The opinion is otherwise explanatory of the action of the court in connection with the general order and its subsequent modification.

The plaintiffs in error seasonably, broadly, and particularly objected and excepted to the action of the court which involved the modification of the general order, and limited the new trial to that phase of the controversy which related to titles.

The point is taken by the defendants in error that the first assignment is in violation of rule 11 of this court, because it involves distinct propositions. While it may be literally true that the assignment does involve distinct propositions, we do not look with favor upon the point raised, because both propositions are directed against the authority of the court to modify the general order to reinstate the verdict in part and to limit the scope of the new trial to questions relating to title.

We have no doubt of the power of the court to carry along pending motions that they may be taken up and considered in a subsequent term. Nor have we any doubt of the power of a court, while a case and the parties are before it, upon proper hearing, to reconsider, modify, and enlarge its previous orders in respect to a pending controversy. Such power and such authority is so familiar and so well understood that we see no occasion for citing authorities in support of it. The recent Massachusetts case of Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, Ann. Cas. 1912D, 588, contains a careful review of authorities on this subject, and is valuable, not only because of the weight of the reasoning which it contains, but because of the note at page 565 of 210 Mass., 97 N.E. 102, Ann, Cas. 1912D, 588.

While the order limiting the issues of the new trial does not technically express its operation upon other branches of the case involved in the verdict, it is, nevertheless, unquestionable that the court clearly intended to rescind the general order vacating the judgment and the verdict, to restore the original status, and to open for retrial questions of title only, and we think the order should be accepted as sufficient to that end.

Now, as to the propriety of modifying the general order and limiting the scope of the new trial: It is not an unusual thing to order a new trial upon a particular branch of a controversy. It often happens, where a defeated party is aggrieved by the phase of a trial which had to do with the damages, that the verdict is set aside in that respect and a new trial ordered upon the question of damages only; and it sometimes happens, where the grievance has reference to the primary right-- that of recovery-- and where there is no» substantial controversy as to the question of damages, if the right of recovery is established, that the verdict is set aside upon the question of right of recovery only, and the scope of the trial limited accordingly. The question as to what should be done in a given case under a motion for a new trial, in whole or in part, is always largely a question of discretion. The practice of not going over unnecessary grounds which at the end of the first trial and the verdict are found not to involve substantial dispute, and trying again questions that are not in substantial controversy through the instrumentality of a new trial, granted in the exercise of discretion, is a salutary one, and the authorities and the text-books sufficiently sustain it. The case in this circuit of Farrar v. Wheeler, 145 F. 482-490, 75 C.C.A. 386, is among the more recent cases.

In the case at bar the reasonableness of the limitation of the scope of the new trial to questions relating to title, though probably not reviewable here, is made obvious by reference to the motions for the new trial, and the affidavits in their support, because the only substantial grievance urged was that which relates to the state of the...