Daniels v. Goldberg, 21251.

• Decision Date: 05 April 1949
• Docket Number: No. 21251.,21251.
• Parties: DANIELS v. GOLDBERG.
• Court: U.S. Court of Appeals — Second Circuit

173 F.2d 911 (1949)

DANIELS v. GOLDBERG.

No. 21251.

United States Court of Appeals Second Circuit.

April 5, 1949.

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Schlesinger & Krinsky, of New York City (Robert E. Tinsley, of Malverne, N. Y., of counsel), for plaintiff-appellee.

Stroock & Stroock & Lavan, of New York City (Morton L. Deitch and Martin D. Eile, both of New York City, of counsel), for defendant-appellant.

Before L. HAND, Chief Judge, and CHASE and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. Defendant (relying on his exception to the charge and on the denials of his requests to charge) contends that the judge erred in telling the jury that it must decide for plaintiff unless "there was a full and complete agreement." Defendant thus asserts that the jury should have been told that defendant must win if the jury found an understanding that the notes were to be replaced by five-year notes if defendant bought the factory.³ For the purpose of deciding this case, we have viewed it as if defendant's answer had been amended to conform to the evidence, and have construed most favorably to defendant not only the evidence but the New York decisions relative to the parol evidence rule.⁴ Even so, we perceive no error. We think defendant was not entitled to a verdict unless the jury found that the specific understanding (as to the replacement of the notes by five-year notes) constituted part of the entire agreement to which defendant's witnesses testified. For there was no evidence of any such a specific understanding apart from such a larger agreement. Accordingly, the charge for which defendant contends was one which the evidence did not justify.

2. That part of Dr. Klein's testimony which by inadvertence was not read to the jury contained nothing of significance which could have affected the jury's verdict.

3. Defendant urges that the judge erred because he showed, in questions he addressed to one of defendant's witnesses, that he did not believe that witness. But a federal trial judge is not precluded from explicitly saying to a jury that he disbelieves a witness, provided the judge also states that the determination of the facts is for the jury. The judge, in effect, so stated here. Nor can we agree that in any other respects the judge improperly conducted himself.

Affirmed.

CHASE, Circuit Judge (dissenting).

Because I do not think the charge permitted the jury to decide the vital issue of fact raised by the answer and supported sufficiently by the evidence to make the question a substantial one, I cannot agree with my brothers that this judgment should be affirmed.

The failure to charge the substance of the defendant's request that there could be no recovery on the note if the jury found that it "was delivered to Mr. Schlesinger upon the understanding and condition that it was to become enforceable only if the defendant or a corporation organized by him within a reasonable time failed to make purchase of the shoe factory," deprived the defendant of the heart of his defense.

Whether, in the light of the conflicts in the evidence the jury would have decided this issue of fact in favor of the defendant is beside the point. It should be enough for us that there was substantial evidence to show that this note was signed and handed over by the defendant upon the condition that it would not become effective as an obligation binding upon him in the event that he, or a...